Brewster City Zoning Code
SEXUALLY ORIENTED
BUSINESS
§ 153.310 PURPOSE AND FINDINGS.
(A) Purpose. It is the purpose of this subchapter to regulate, through zoning, sexually oriented businesses and related activities to promote the health, safety, morals and general welfare of the citizens of the village, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the village. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene materials.
(B) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the Village Council, and on findings incorporated in the cases of 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); Arcara v. Cloud Books, Inc., 478 U.S. 697, (1986); California v. LaRue, 409 U.S. 109 (1972); Iacobucci v. City of Newport, Ky, 479 U.S. 92 (1986); United States v. O’Brien, 391 U.S. 367 (1968); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); and South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir. 1984), as well as studies conducted in other municipalities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and findings reported in the Final Report of the Attorney General’s Commission on Pornography (1986), the Report of the Attorney General’s Working Group On the Regulation Of Sexually Oriented Businesses (June 6,1989, State of Minnesota), and statistics obtained from the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, the Village Council finds that:
(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make owners of these establishments responsible for the activities that occur on their premises;
(2) Crime statistics show that all types of crimes, especially sex-related crimes, occur with more frequency in neighborhoods where sexually oriented businesses are located. See, e.g., Studies of the cities of Phoenix, Arizona; Indianapolis, Indiana; and Austin, Texas.
(3) Sexual acts, including masturbation, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos, or live sex shows. See, e.g., California v. LaRue, 409 U.S. 109, 111 (1972); See also Final Report of the Attorney General’s Commission on Pornography (1986) at 377;
(4) Offering and providing such booths and/or cubicles encourages such activities, which creates unhealthy conditions. See, e.g., Final Report of the Attorney General’s Commission on Pornography (1986) at 376-77;
(5) Persons frequent certain adult theaters, adult arcades and other sexually oriented businesses, for the purpose of engaging in sex within the premises of such sexually oriented businesses. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697, 698 (1986); see also Final Report of the Attorney General’s Commission on Pornography (1986) at 376-77;
(6) At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections. See, e.g., Study of Fort Meyers, Florida;
(7) For the period 1985 through 1995, the total number of reported cases of AIDS in the United States caused by the immunodeficiency virus (HIV) was 523,056. See, e.g., Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention;
(8) The total number of cases of early (less than one year) syphilis in the United States reported during the ten-year period 1985 through 1995 was 367,796. See, e.g., Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention;
(9) The number of cases of gonorrhea in the United States reported annually remains at a high level, with a total of 1,250,581 cases reported during the period 1993 through 1995. See, e.g. Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention;
(10) The Surgeon General of the United States in his report of October 22,1986, advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug use, exposure to infected blood and blood components, and from an infected mother to her newborn;
(11) According to the best scientific evidence available, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. See, e.g. Findings of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention;
(12) 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 self-regulate those activities and maintain those facilities. See, e.g., Final Report of the Attorney General’s Commission on Pornography (1986) at 377;
(13) Numerous studies and reports have determined that bodily fluids, including semen and urine, are found in the areas of sexually oriented businesses where persons view “adult” oriented films. See, e.g., Final Report of the Attorney General’s Commission on Pornography (1986) at 377;
(14) Nude dancing in adult establishments encourages prostitution, increases sexual assaults and attracts other criminal activity. See, e.g., Barnes v. Glen Theatre, 501 U.S. 560, 583 (1991);
(15) Nude dancing in adult establishments increases the likelihood of drug-dealing and drug use. See, e.g., Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1056 (9th Cir. 1986);
(16) The findings noted in divisions (B)(1) through (B)(17) raise substantial governmental concerns;
(17) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns;
(18) Zoning is an appropriate mechanism to see that the sexually oriented business is located in an area consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the village; and
(19) The general welfare, health, morals and safety of the citizens of this village will be promoted by the enactment of this chapter.
(Ord. 30-1974, § 505.01, passed 7-15-1974; Ord. 13-2003, passed 4-21-2003)
§ 153.311 SEXUALLY ORIENTED BUSINESS, DEFINED.
“Sexually oriented business” shall have the same meaning as defined in Chapter 111 of the Codified Ordinances of the Village of Brewster and shall include any of the following:
(A) Adult arcades;
(B) Adult bookstores or adult video stores;
(C) Adult cabarets;
(D) Adult motels;
(E) Adult motion picture theaters;
(F) Adult theaters;
(G) Escort agencies;
(H) Nude model studios; and
(I) Sexual encounter centers.
(Ord. 30-1974, § 505.02, passed 7-15-1974; Ord. 13-2003, passed 4-21-2003)
§ 153.312 PERMITTED ZONING DISTRICTS.
Sexually oriented business establishments shall be permitted as a conditional use in a I-2 Industrial District in the village only and in no other district.
(Ord. 30-1974, § 505.03, passed 7-15-1974; Ord. 13-2003, passed 4-21-2003)
§ 153.313 LOCATION RESTRICTIONS.
Sexually oriented businesses shall be permitted in any I-2 Industrial District provided that:
(A) The sexually oriented business may not be operated within:
(1) One thousand five hundred feet of a church, synagogue or regular place of religious worship;
(2) One thousand five hundred feet of a public or private elementary or secondary school;
(3) One thousand five hundred feet of a boundary of any residential district;
(4) One thousand five hundred feet of a public park;
(5) One thousand five hundred feet of a licensed day care center;
(6) One thousand five hundred feet of an entertainment business that is oriented primarily towards children or family entertainment; or
(7) One thousand feet of another sexually oriented business.
(B) A sexually oriented business may not be operated in the same building, structure or portion thereof, containing another sexually oriented business.
(C) For the purpose of this subchapter, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, synagogue, regular place of worship or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot, or licensed day care center, or child or family entertainment business.
(D) For purposes of division (C) above, the distance between any two sexually oriented business uses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
(Ord. 30-1974, § 505.04, passed 7-15-1974; Ord. 13-2003, passed 4-21-2003)
§ 153.314 NONCONFORMING USES.
(A) Any business lawfully operating on the effective date of this chapter that is in violation of the locational or structural configuration requirements of this chapter shall be deemed a nonconforming use. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use.
(B) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a church, synagogue or regular place of religious worship, public or private elementary or secondary school, licensed day care center, public park, residential district or child or family entertainment business within 1,500 feet of the sexually oriented business. This provision applies only to the renewal of a valid business license, and does not apply when an application for a business license is submitted after a business license has expired or has been revoked.
(Ord. 30-1974, § 505.05, passed 7-15-1974; Ord. 13-2003, passed 4-21-2003)
§ 153.315 SIGNAGE.
(A) Notwithstanding any other village ordinance, code, or regulation to the contrary, it shall be unlawful for the operator of any sexually oriented business or any other person to erect, construct or maintain any sign for the sexually oriented business other than the one primary sign and one secondary sign, as provided herein.
(B) Primary signs shall have no more than two display surfaces. Each such display surface shall:
(1) Not contain any flashing lights;
(2) Be a flat plane, rectangular in shape;
(3) Not exceed 75 square feet in area; and
(4) Not exceed ten feet in height or ten feet in length.
(C) Primary signs shall contain no photographs, silhouettes, drawings or pictorial representations in any manner, and may contain only the name of the enterprise.
(D) Each letter forming a word on a primary sign shall be of solid color, and each such letter shall be the same print-type, size and color. The background behind such lettering on the display surface of a primary sign shall be of a uniform and solid color.
(E) Secondary signs shall have only one display surface. Such display surface shall:
(1) Be a flat plane, rectangular in shape;
(2) Not exceed 20 square feet in area;
(3) Not exceed five feet in height and four feet in width; and
(4) Be affixed or attached to any wall or door of the enterprise.
(F) The provisions of division (B)(1) and divisions (C) and (D) shall also apply to secondary signs.
(Ord. 30-1974, § 505.06, passed 7-15-1974; Ord. 13-2003, passed 4-21-2003)
§ 153.316 SEPARABILITY.
If any section, division or clause of this subchapter shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, divisions and clauses shall not be affected thereby.
(Ord. 30-1974, § 505.07, passed 7-15-1974; Ord. 13-2003, passed 4-21-2003)
§ 153.317 CONFLICTING ORDINANCES REPEALED.
All ordinances or parts of ordinances in conflict with the provisions of this subchapter are hereby repealed.
(Ord. 30-1974, § 505.08, passed 7-15-1974; Ord. 13-2003, passed 4-21-2003)