This chapter shall be known and should be cited as the "Sexually Oriented
Business Licensing Law."
This chapter is enacted under the Home Rule Power of the Village of
Lake George in the interest of the health, safety, morals and general welfare
of the people of the Village of Lake George.
This chapter shall be effective throughout the Village of Lake George,
except that no provision of this chapter that conflicts with a provision of
any law of the State of New York shall be effective within the Village of
Lake George.
This chapter shall be liberally construed to accomplish its purpose
of licensing and regulating sexually oriented businesses and related activities.
Unless otherwise indicated, all provisions of this chapter shall apply equally
to all persons, regardless of sex. Masculine pronouns, such as "he," "his,"
and "him" as employed in this chapter, shall also be construed to apply to
feminine pronouns and neutral pronouns, unless the context suggests otherwise.
Words used in the singular number shall include the plural number, unless
the context suggests otherwise.
The intent of the Village Board in adopting this chapter is to establish
reasonable and uniform regulations that will protect the health, safety, morals
and general welfare of the people of the Village of Lake George.
Based on evidence and testimony presented at public hearings before
the Village Board and based upon findings incorporated in studies conducted
by other municipalities, together with information and reports available to
the Village Board detailing the potential for criminal activities associated
with sexually oriented businesses and on the findings incorporated in the
City of Renton v. Playtime Theaters, Inc., 106 S.Ct. 925 (1986); Young v.
American Mini Theaters, Inc., 96 S.Ct. 2440 (1976); Bonnell, Inc. v. Board
of Adjustments, 791 P.2d 107 (Okl.App.1989) and considering that public input,
research and legal analysis which the Village Board believes to be relevant
to problems associated with sexually oriented businesses, the Village Board
determines that the enactment of a time, place and manner ordinance regulating
and addressing the adverse secondary effects of sexually oriented businesses
is an appropriate exercise of home rule power in the interests of the health,
safety, morals and general welfare of the people of the Village of Lake George,
and the Village Board hereby finds:
A.
Establishments may exist now or in the future within
the Village of Lake George where books, magazines, motion pictures, prints,
photographs, periodicals, records, novelties and/or devices which depict,
illustrate, describe or relate to specified sexual activities are possessed,
displayed, exhibited, distributed and/or sold.
B.
Establishments may exist now or in the future within
the Village of Lake George:
(1)
Where the superficial tissues of one person are manipulated,
rubbed, stroked, kneaded and/or tapped by a second person, accompanied by
the display or exposure of specified anatomical areas;
(2)
Where dancers, entertainers, performers or other individuals
who, for any form of commercial gain, perform or are presented while displaying
or exposing any specified anatomical area; or
(3)
Where straddle dancing occurs.
D.
When the activities described in Subsections A and B are present in establishments, other activities which are illegal, immoral or unhealthful tend to accompany them, concentrate around them and be aggravated by them. Such other activities include, but are not limited to, prostitution, pandering, solicitation for prostitution, lewd and lascivious behavior, exposing minors to harmful materials, possession, distribution and transportation of obscene materials, sale or possession of controlled substances and violent crimes against persons and property.
E.
When the activities described in Subsections A and B are present in establishments, they tend to attract an undesirable number of transients, blight neighborhoods, adversely affect neighboring businesses, lower real property values, promote crime, particularly the kinds detailed in Subsection D, and ultimately lead residents and businesses to move to other locations.
I.
The concurrence of the sale and consumption of alcoholic beverages with the activities described in Subsections A and B is hazardous to the health and safety of those persons in attendance, depreciates the value of adjoining real property, harms the economic welfare of the Village of Lake George and adversely affects the public's interest in the quality of life, tone of commerce and community environment in the Village of Lake George.
J.
In order to preserve and safeguard the health, safety, morals and general welfare of the people of the Village of Lake George, it is necessary and advisable for the Village Board to prohibit the sale and consumption of alcoholic beverages at establishments where the activities described in Subsections A and B occur.
M.
In order to preserve and safeguard the health, safety, morals and general welfare of the people of the Village of Lake George, it is necessary and advisable for the Village Board to regulate the conduct of owners, managers, operators, agents, employees, entertainers, performers and customers at establishments where the activities described in Subsections A and B occur.
N.
The potential dangers to the health, safety, morals and general welfare of the people of the Village of Lake George posed by permitting an establishment at which the activities described in Subsections A and B occur to operate without first obtaining a license under this chapter are so great as to require the licensure of such establishments prior to their being permitted to operate.
O.
Requiring licensees of establishments at which the activities described in Subsections A and B occur to keep a list of information concerning current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.
P.
Prohibiting establishments at which the activities described in Subsections A and B occur from operating within set distances of educational institutions, religious institutions, areas zoned for residential use and parks, at which minors are customarily found, will serve to protect minors from the adverse affects of the activities that accompany such establishments.
Q.
"Straddle dancing" or "lap dancing" does not contain
any element of communication, and is therefore conduct rather than expression.
R.
"Straddle dancing" or "lap dancing" in establishments
poses a threat to the health of the participants and promotes the spread of
communicable and social diseases.
In this chapter, unless the context suggests otherwise, the following
terms shall have the meanings indicated:
Any place to which the public is permitted or invited wherein currency-operated,
coin-operated or slug-operated or electronically, electrically or mechanically
controlled still or motion-picture machines, projectors or other image-producing
devices are maintained to show images to five or fewer persons per machine
at any one time, and where the images so displayed are distinguished or characterized
by the depicting or describing of specified sexual activities or specified
anatomical areas.
An establishment which sells or rents adult material, unless the
adult material is accessible only by employees and either the gross income
from the sale and/or rental of adult material comprises less than 5% of the
gross income from the sale and/or rental of goods and/or services at the establishment,
or the individual items of adult material offered for sale and/or rental comprises
less than 5% of the individual items publicly displayed at the establishment
as stock-in-trade in any of the following categories: books, magazines, periodicals
or other printed material or photographs, films, motion pictures, video cassettes,
slides or other visual representations or recordings or other audio matter.
It is an affirmative defense to an alleged violation of this chapter regarding
operating an adult bookstore or adult video store without a sexually oriented
business license if the alleged violator shows that the adult material is
accessible only by employees and either the gross income from the sale and/or
rental of adult material comprises less than 5% of the gross income from the
sale and/or rental of goods and/or services at the establishment, or the individual
items of adult material offered for sale and/or rental comprises less than
5% of the individual items publicly displayed at the establishment as stock-in-trade
in any of the following categories: books, magazines, periodicals or other
printed matter or photographs, films, motion pictures, video cassettes, slides
or other visual representations or recordings or other audio matter.
A nightclub, bar, restaurant or similar commercial establishment
which regularly features:
Persons who appear in a state of nudity; or
Live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities; or
Films, motion pictures, video cassettes, slides or other photographic
reproductions which are characterized by the depiction or description of specified
sexual activities or specified anatomical areas.
An establishment where any employee:
Displays or exposes any specified anatomical areas to a person other
than another employee, regardless of whether the employee actually engages
in dancing;
Wears any covering, tape, pastie or other device which simulates or
otherwise gives the appearance of the display or exposure of any specified
anatomical areas, regardless of whether the employee actually engages in dancing;
Offers, solicits or contracts to dance or perform with a person other
than another employee in consideration for any tip, remuneration or compensation
from or on behalf of that person;
Dances or performs with or within three feet of a person other than
another employee in consideration for any tip remuneration or compensation
from or on behalf of that person;
Provided, however, that these provisions are not intended to apply if
the predominant business or attraction of the establishment is not the offering
to customers of a product, service or entertainment which is intended to provide
sexual stimulation or sexual gratification to such customers, and the establishment
is not distinguished by an emphasis on or the promotion of matters or persons
depicting, describing, displaying, exposing, simulating or relating to specified
sexual activities or specified anatomical areas.
Any one or more of the following, regardless of whether it is new
or used:
Books, magazines, periodicals or other printed matter or photographs,
films, motion pictures, video cassettes, slides or other visual representations
or recordings or other audio matter, which have as their primary or dominant
theme matter depicting, illustrating, describing or relating to specified
sexual activities or specified anatomical areas; or
Instruments, novelties, devices or paraphernalia other than birth control
devices which are designed for use in connection with specified sexual activities.
Any motel, hotel, boarding house, rooming house or other place of
temporary lodging which includes the word "adult" in any name it uses or which:
Offers accommodations to the public for any form of consideration; provides
patrons with closed-circuit television transmissions, films, motion pictures,
video cassettes, slides or other photographic reproductions which are characterized
by the depiction or description of specified sexual activities or specified
anatomical areas; and has a sign visible from the public right-of-way which
advertises the availability of this adult type of photographic reproductions;
or
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 commercial establishment where, for any form of consideration,
films, motion pictures, video cassettes, slides or similar photographic reproductions
are regularly shown which are characterized by the depiction or description
of specified sexual activities or specified anatomical areas.
A theater concert hall, auditorium or similar commercial establishment
which regularly features persons who appear in a state of nudity or live performances
which are characterized by the exposure of specified anatomical areas or specified
sexual activities.
A beverage containing more than 1% of alcohol by weight.
It shall be prima-facie evidence that a beverage is an alcoholic beverage
if there is proof that the beverage in question was or is known as "whiskey,"
"moonshine whiskey," "shine," "rum," "gin," "tequila," "vodka," "scotch,"
"scotch whiskey," "brandy," "beer," "malt liquor" or by any other similar
name or names, or was contained in a bottle or can labeled as any of the above
names, or a name similar thereto, and the bottle or can bears the manufacturer's
insignia, name or trademark.
Any person who, by experience in the handling of alcoholic beverages,
or who by taste, smell or drinking of such alcoholic beverages has knowledge
of the alcoholic nature thereof, may testify as to his opinion about whether
such beverage is an alcoholic beverage.
A determination of guilt resulting from a plea or trial, regardless
of whether adjudication was withheld or whether imposition of sentence was
suspended.
The Building Department, Fire Marshal, Health Department, Sheriff
or Zoning Department, including the respective director, employees, officers
and agents thereof.
A premises or site upon which there is an institution of learning
for minors, whether public or private, which conducts regular classes or courses
of study. The term educational institution includes a premises or site upon
which there is a nursery school, kindergarten, elementary school, junior high
school, senior high school, community college or any special institution of
learning.
A person who works or performs in a sexually oriented business, irrespective
of whether said person is paid a salary or wage.
A person who, for consideration, agrees or offers to act as a companion
or date for another person, or who agrees or offers to privately model lingerie
or to privately perform a striptease for another person.
A person or business association who furnishes, offers to furnish
or advertises to furnish escorts as one of its primary business purposes for
a fee, tip, or other consideration.
Includes any of the following:
To open or commence any sexually oriented business as a new business;
To convert an existing business, whether or not a sexually oriented
business, to any sexually oriented business;
To add any sexually oriented business to any other existing sexually
oriented business; or
To relocate any sexually oriented business.
A site or premises, or portion thereof, upon which certain activities
or operations are conducted for commercial or pecuniary gain. (Operated for
commercial or pecuniary gain shall not depend upon actual profit or loss.
Also, operated for commercial or pecuniary gain shall be presumed where the
establishment has an occupational license.)
An employee or officer of the Health Department, Building Department,
Zoning Department, Sheriff or Fire Marshal who inspects premises licensed
under this chapter and takes or requires the actions authorized by this chapter
in case of violations being found on licensed premises, and who also inspects
premises seeking to be licensed under this chapter and takes or requires corrections
of unsatisfactory conditions found on the premises.
An officer who is on official duty for a law enforcement agency.
Any person whose application for an a sexually oriented business
has been granted and who owns, operates or controls the establishment.
Any person who engages in or performs any activity which is necessary
to or which facilitates the operation of a sexually oriented business, including
but not limited to the licensee, manager, owner, doorman, bartender, disc
jockey, sales clerk, ticket taker, movie projectionist or supervisor.
Any place where a person who appears in a state of nudity or displays
specified anatomical areas is provided to be observed, sketched, drawn, painted,
sculptured, photographed or similarly depicted by other persons who pay money
or any form of consideration.
The appearance of a human bare buttock, anus, male genitals, female
genitals or female breast.
A tract of land within a municipality or unincorporated area which
is kept for ornament or recreation and which is maintained as public property.
Includes, but is not limited to, an individual, association, joint
venture, partnership, estate, trust, business trust syndicate, fiduciary,
corporation, limited liability company or partnership, and any other similar
entity.
When used together with the term "sexually oriented business," "religious
institution," "educational institution," "commercial establishment that in
any manner sells or dispenses alcohol for on-premises consumption" or "residence,"
the word "preexisting" shall mean as follows:
The sexually oriented business, institution or residence is already
being lawfully used or lawfully occupied; or
A building permit for the sexually oriented business, institution or
residence has been lawfully issued, all fees associated with the permit have
been paid and the permit has not expired; or
An application or plan to allow the sexually oriented business, institution
or residence to be constructed, used or occupied has been filed and approved,
with or without conditions, and all fees associated with the application or
plan have been paid; or
An application or plan to allow the sexually oriented business, institution
or residence to be constructed, used or occupied has been filed, all fees
associated with the application or plan have been paid and the application
or plan is undergoing review.
Engaging in specified sexual activities or the display of any specified
anatomical area by an employee of a sexually oriented business to a person
other than another employee while the person is in an area not accessible
during such display to all other persons in the sexually oriented business
premises, or while the person is in an area in which the person is totally
or partially screened or partitioned during such display from the view of
all persons outside the area.
A premises or site which is used primarily or exclusively for religious
worship and related religious activities.
A state of dress in which clothing covers no more than the genitals,
pubic region and areola of the female breast, as well as portions of the body
covered by supporting straps or devices.
A business or commercial enterprise that, as one of its primary business
purposes, offers for any form of consideration:
An adult arcade, adult bookstore or adult video store, adult cabaret,
adult dancing establishment, adult motel, adult motion-picture theater, adult
theater, escort agency, nude model studio or sexual encounter center.
Less than completely and opaquely covered:
Human genitals or pubic region;
Human buttocks;
That portion of the human female breast encompassed within an area falling
below the horizontal line one would have to draw to intersect a point immediately
above the top of the areola (the colored ring around the nipple). 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, shirt, leotard, bathing suit or other wearing apparel,
provided that the areola is not so exposed.
Human male genitals in a discernibly turgid state, even if completely
and opaquely covered.
A violation of this chapter or any of the following offenses under
the Penal Law:
Article 130 (Sex Offenses).
Article 135 (Kidnapping, Coercion and Related Offenses).
Article 220 (Controlled Substances Offenses).
Article 221 (Offenses Involving Marijuana).
Article 225 (Gambling Offenses).
Article 230 (Prostitution Offenses).
Article 235 (Obscenity and Related Offenses).
Article 245 (Offenses Against Public Sensibilities).
Article 263 (Sexual Performance By a Child).
Human genitals in a state of sexual stimulation, arousal or tumescence;
or
Acts of human anilingus, bestiality, buggery, cunnilingus, coprophagy,
coprophilia, fellation, flagellation, masochism, masturbation, necrophilia,
pederasty, pedophilia, sadism, sadomasochism, sapphism, sexual intercourse,
sodomy, urolagnia or zooerasty; or
Fondling or other erotic touching of human genitals, pubic region, buttock,
anus or female breast; or
Either of the following acts:
The use by an employee of any part of his or her body to touch the genital
or pubic area of a person while at the sexually oriented business, or the
touching of the genital or pubic area of any employee with a person while
at the sexually oriented business. It shall be a straddle dance regardless
of whether the touch or touching occurs while the employee is displaying or
exposing any specified anatomical area. It shall also be a straddle dance
regardless of whether the touch or touching is direct or through a medium.
The straddling of the legs of an employee over any part of the body
of a person other than another employee at the sexually oriented business,
regardless of whether there is a touch or touching.
It is not the intent of the Village Board to legislate with respect
to matters of obscenity. These matters are regulated by state law.[1]
[1]
Editor's Note: See Penal Law, § 235 et seq.
It is not the intent of the Village Board to legislate with respect
to matters of massage establishments. These matters are regulated by Article
235 of the Penal Law of the State of New York.
