Cicero Town City Zoning Code
ARTICLE XII
Adult Uses
[Added 12-27-2006 by L.L. No. 30-2006]
§ 210-63 Purpose.
A.
The purpose of this article is to protect the public health, safety, welfare, economic well being, and the tranquility in the Town of Cicero while developing adequate regulations which may be uniformly applied to prevent any deleterious secondary effects and public nuisances associated with adult uses.
B.
It is not the intent of the Town of Cicero to:
(1)
Deny any person the right of free expression, guaranteed by the U.S. Constitution and the New York State Constitution, as may be expressed and presented in the form of goods and services offered by adult-oriented businesses;
(2)
Impose upon any person any additional limitations or restrictions upon the right of free expression, guaranteed by the U.S. Constitution and the New York State Constitution, as may be expressed and presented in the form of goods and services offered by adult-oriented businesses, beyond those granted to the Town under the U.S. Constitution, the New York State Constitution and the laws of the State of New York regarding the time, place and manner of that free expression;
(3)
Impose upon any person any additional limitations or restrictions upon the right to obtain, view or partake of any communications guaranteed by the U.S. Constitution and the New York State Constitution, as may be expressed and presented in the form of goods and services offered by adult-oriented businesses, beyond those granted to the Town under the U.S. Constitution, the New York State Constitution and the laws of the State of New York regarding the time, place and manner of that free expression; or
(4)
Estimate, decide, determine, resolve, consider, conclude, judge or qualify in any manner of fashion the quality or value of the content, nature, message, form, format, appearance, substance or presentation of the free expression guaranteed by the U.S. Constitution and the New York State Constitution, as may be expressed and presented in the form of goods and services offered by adult-oriented businesses.
§ 210-64 Legislative findings.
A.
The area surrounding the Town of Cicero currently has several different forms of adult use entertainment which serve as an outlet for free expression.
B.
Currently, there do not exist adequate regulatory standards controlling the time, place and manner in which adult uses are conducted in the Town of Cicero.
C.
Adult uses, by their very nature, are recognized as having serious objectionable characteristics, and under certain circumstances, have deleterious effects on the surrounding neighborhoods. The Town of Cicero's resources would be severely strained to adequately address the potential increased demand for crime prevention, degradation of the community's retail areas, the potential decline in property values and overall quality of neighborhoods that the proliferation of such uses could dangerously affect.
D.
The Town of Cicero has conducted necessary research to examine the extent of deleterious secondary effects upon the community and has determined the special regulations that need to be adopted to accomplish the primary purpose of restricting the accessibility of adult uses to minors and prevent the deleterious secondary effects upon areas in the Town of Cicero. Local legislation by the Town Board is needed to prevent the occurrence of deleterious secondary effects associated with adult uses and to prevent a race of diligence by applicants seeking to establish such uses until proper regulations have been put into place.
E.
The Town of Cicero has diligently researched the most appropriate location for adult uses within the Town by reviewing numerous locations, carefully evaluating each location and the ability of each location to promote the intent of the Town of Cicero in enacting this adult use legislation.
F.
A reasonable licensing procedure is an appropriate mechanism to place the on the operators of adult uses. A reasonable licensing procedure will also encourage the operators of adult uses to operate such businesses in a manner consistent with the health, safety and welfare of its patrons and employees as well as citizens of the Town. Because the Town of Cicero Planning Board routinely evaluates site plans under the criteria set forth in the Town of Cicero Town Code, the Planning Board is the entity best suited to issuing adult use licenses in conjunction with reviewing a site plan for an adult use.
G.
The general welfare, health and safety of the citizens of the Town of Cicero will be promoted by the enactment of this article.
H.
The adoption of this article has been determined to be an Type II Action under SEQRA, 6 NYCRR Part 617, and will not result in any significant adverse environmental impact.
§ 210-65 Definitions.
As used in this chapter and article, the following terms shall have the meanings indicated:
ADULT ARCADE
Any place to which the public is permitted or invited wherein coin-operated, slug-operated, or for any form of consideration, electronically, electrically, or mechanically controlled still or motion-picture machines, projectors, video or laserdisc players, 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.
ADULT BOOKSTORE, NOVELTY STORE OR VIDEO STORE
A.
A commercial establishment which, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
(1)
Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, videocassettes or video reproductions, digital video discs ("DVDs"), slides or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
(2)
Instruments, devices or paraphernalia which are primarily intended, labeled, designed, advertised, or promoted for use in connection with specified sexual activities.
B.
A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing specified sexual activities or specified anatomical areas and still be categorized as an adult bookstore or adult video store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore, adult novelty store or adult video store so long as at least 25% of its store area, or 25% of its display area, or 25% of the total stock of the establishment is dedicated to the offering sale or rental for consideration the specified materials which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
ADULT ENTERTAINMENT CABARET
A public or private establishment which is licensed to serve food and/or alcoholic beverages and which features topless dances, strippers, male or female impersonators or similar entertainers.
ADULT MOTEL/HOTEL
A hotel, motel or similar commercial establishment which offers accommodations to the public for any form of consideration, provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, DVDs, 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.
ADULT PHYSICAL CONTACT ESTABLISHMENT
Any establishment which offers or purports to offer massage or other physical contact to patrons of either gender by employees or staff of either gender. Medical offices, offices of persons licensed or authorized under the Education Law to practice massage therapy, offices or persons licensed or otherwise authorized by the Education Law as physical therapists or physical therapist assistants and electrolysis, karate, judo and dance studios are not to be considered adult physical contact establishments.
ADULT THEATER
A theater, concert hall, auditorium or similar establishment that customarily presents either live performance or motion pictures, films, videotapes, slide shows, DVDs or other media characterized by the exposure of specified sexual activities or specified anatomical areas and that are not open to the public generally but excludes, or is required by law to exclude, minors by reason of age.
ADULT USE
Any establishment or business involved in the dissemination of material distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas, including but not limited to adult bookstores, adult motion-picture theaters and adult entertainment cabarets.
ADULT USE ESTABLISHMENT
Any building, structure or land, or portion thereof used for adult uses as defined in this article.
APPEARANCE TICKET
A written notice issued in accordance with § 150 of the New York State Criminal Procedure Law.
CITATION
A notice that an adult use licensee is in violation of this article.
LICENSE/ADULT USE LICENSE
The license granted to the owner or operator of an adult use upon approval by the Planning Board.
LICENSEE
The grantee of an adult use license.
PEEP SHOWS
The use of a building, or a portion of a building, to present material in the form of live shows, films, videotapes, DVDs or other media, viewed from an individual room or similar enclosure which excludes, or is required by law to exclude, any minor by reason of age.
SPECIFIED ANATOMICAL AREAS
A.
Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and
B.
Human male genitalia in a discernibly turgid state even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
A.
Human genitals in a state of sexual stimulation or arousal;
B.
Acts of human masturbation, sexual intercourse or sodomy; or
C.
Fondling or other erotic touching of human genitals, pubic region, buttocks or breasts.
§ 210-66 License required.
A.
It shall be a violation of this article for any person to operate an adult use without a valid license issued under this article.
B.
Operation of an adult use described in Subsection A above without a valid license is a violation punishable in accordance with this article.
§ 210-67 Application procedure.
A.
In addition to the requirements of a site plan application, the application for an adult use license shall contain:
(1)
The name under which the establishment is to be operated and a general description of the type of adult use found at the proposed establishment;
(2)
Whether the applicant has had a previous license under this article or other similar adult use ordinances from another municipality denied, suspended or revoked, including the name and location of the adult use for which the business license was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant is or has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is or was licensed under an adult use ordinance whose business license has previously been denied, suspended or revoked, including the name and location of the adult use for which the business license was denied, suspended or revoked as well as the date of denial, suspension or revocation;
(3)
Whether the applicant holds any other licenses under this article or other similar adult use ordinance from another municipality, and, if so, the names and locations of such other adult uses;
(4)
The expected startup date, expressed in number of days from the date of issuance of the adult use license and receipt of site plan approval; and
(5)
If the persons identified as the fee owner(s) of the real property that is the subject of the site plan and adult use application is not also the owner of the proposed adult use, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the owner(s) or proposed owner(s) of the adult use to have or obtain the use and possession of the real property that is to be used for the adult use.
(6)
A renewal application shall contain any changes, modifications, or additions to Subsection A(1) through (6).
B.
An applicant has an affirmative duty to supplement an application with new information received subsequent to the date the application was deemed completed by the Zoning and Planning Office.
C.
If a person who wishes to own or operate an adult use establishment is an individual, he or she must sign the site plan application as applicant. If the person who wishes to operate an adult use is an entity organized under the Laws of the State of New York, a duly authorized representative of the entity must sign the site plan application. All signatures shall be notarized.
D.
Applications for an adult use establishment, whether original or renewal, must be made to the Zoning and Planning Office by the intended operator of the adult use. Applications must be submitted during regular business hours.
E.
The Planning Board shall hear all adult use license applications simultaneously with the site plan application for any site.
§ 210-68 Site plan; issuance of license for adult use.
A.
All adult use establishments must undergo site plan review pursuant to § 210-27 of this chapter.
B.
A public hearing shall be held for all adult use site plan applications and adult use license applications.
C.
The Planning Board shall approve, approve with modifications, or disapprove an adult use license when considering the site plan application for the proposed establishment.
D.
All site plans for adult uses shall be conditioned on the applicant's strict compliance with all provisions of this article.
E.
The Planning Board shall review with the applicant those areas within the adult use establishment in which the adult use activities will take place. No adult use activities shall take place in the establishment in any location not approved by the Planning Board during the site plan and license approval process.
F.
The Planning Board shall not approve an adult use license for any establishment not in the location specified in § 210-77.
G.
The Planning Board shall not approve an adult use license for any adult use that operated prior to obtaining site plan and license approval.
H.
The Planning Board shall approve a license to an applicant with final site plan approval unless a finding is made that:
(1)
The applicant has failed to provide the 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 denied a license by the Town to operate an adult use within the preceding 12 months, or whose license to operate an adult use has been revoked within the preceding 12 months;
(4)
The license fee required under this article has not been paid;
(5)
The applicant has previously been convicted of a crime which, in the reasonable determination of the Planning Board, after careful consideration of Article 23-A of the Correction Law of the State of New York, renders the applicant unfit to operate an adult use; or
(6)
An applicant is in violation of or is not in compliance with one or more of the provisions of this article.
I.
Upon the approval of a license, the Planning Board shall notify the Administrator of the Zoning and Planning Office. The Administrator of the Zoning and Planning Office shall issue a license for the adult use establishment. A copy of the license shall be filed in the Town Clerk's Office and the Zoning and Planning Office.
J.
A license issued pursuant to this section shall state on its face the name of the person or entity to whom it is granted, the expiration date, and the address of the adult use establishment. The license shall be posed in a conspicuous place at or near the entrance to the adult use so that it may be easily read.
K.
The fact that a person possesses other types of state, Town or other municipal permits and/or licenses does not exempt him or her from the requirement of obtaining an adult use license.
L.
An adult use license shall permit the licensee to operate the adult use establishment between the hours of 8:00 a.m. to 12:00 a.m.
M.
A licensee shall be prohibited from selling alcoholic beverages on the premises in accordance with the Alcoholic Beverage Control Law of the State of New York.
§ 210-69 Appeals of adult use license determinations.
A.
An applicant may appeal a final decision of the Planning Board regarding an adult use license to the Zoning Board of Appeals.
B.
The applicant must appeal to the Zoning Board of Appeals within 60 days after filing of the decision.
C.
The status quo immediately prior to the denial of the license shall be maintained during the pendency of the appeal.
D.
If the Zoning Board of Appeals denies the applicant an adult use license, suspends an adult use license, or revokes an adult use license, the applicant may appeal the decision to any Court of competent jurisdiction upon the applicant's filing of an Article 78 proceeding.
E.
If the Zoning Board of Appeals approves an adult use license, the Planning Board shall review the site plan for the adult use establishment, if such site plan has not been approved. The Zoning Board of Appeals shall direct the Administrator of the Zoning and Planning Office to issue an adult use license in accordance with § 210-68. In no event may an adult use establishment operate prior to site plan approval by the Planning Board.
§ 210-70 Fees for adult use applications.
A.
The fee for reviewing an adult use license application shall be $500.
B.
This fee shall be in addition to fees required for site plan applications.
C.
The cost to renew an adult use license shall be $500 for each renewal.
§ 210-71 Inspection of adult use establishments.
A.
The Town is permitted to inspect the premises of any adult use establishment within the Town in order to ensure compliance with the provisions of this article and other laws. A licensee shall permit representatives of the Police Department and/or the Zoning and Planning Office to inspect the premises at any time the establishment is open for business. Any such representative shall have the authority to: inspect those areas to which patrons have access; inspect all other areas of the adult use establishment upon reasonable suspicion of a violation of this article, or to ensure compliance with any other local building code or ordinance; request for inspection of the license required under this article; and to request for identification of those individuals who reasonably appear to be under the age of 18.
B.
A person who operates an adult use establishment or his or her agent or employee commits a violation of this article if he or she refuses to promptly permit such lawful inspection. An appearance ticket or a citation may be issued and the licensee may be subject to the penalties set forth in this article.
§ 210-72 Expiration of license; denial of renewal.
A.
Each license shall expire one year from the date of issuance and may be renewed only by completing a renewal application. An application for renewal shall be made at least 30 days before the expiration date. When an application is made less than 30 days before the expiration date, the expiration of the license will not be affected.
B.
The administrator of the Zoning and Planning Office is authorized to approve adult use license renewal applications if there are no material changes to the information contained in the original site plan and adult use license application. If, in the opinion of that administrator, there are material changes to a renewal application, that administrator shall cause the application to be placed on the next available Planning Board agenda for determination to be made by the Planning Board.
C.
If the administrator of the Zoning and Planning Office denies a renewal application, the applicant may appeal the decision to the Planning Board. If the Planning Board denies a renewal application, the applicant may appeal the decision as set forth in § 210-69.
D.
When an applicant is denied a renewal of an adult use license, the applicant shall not be issued a license for one year from the date of denial. Notwithstanding the provisions of this section, in the event an applicant appeals the nonrenewal of a license, the status quo immediately prior to nonrenewal shall be maintained throughout the pendency of the appeal, up to and including judicial review on the merits as set forth in § 210-69.
§ 210-73 Suspension of license.
A.
The Planning Board shall suspend a license for a period not less than 30 days if it determines by a preponderance of the evidence that a licensee or an employee of a licensee has:
(1)
Violated or is not in compliance with any section of this article;
(2)
Operated or performed services in an adult use establishment while intoxicated by the use of alcoholic beverages or controlled substances;
(3)
Refused to allow prompt inspection of the adult use establishment as authorized by § 210-71; or
(4)
With knowledge, permitted gambling by any person at the adult use establishment.
B.
A licensee may appeal the suspension of a license to the Zoning Board of Appeals in accordance with the procedure set forth in § 210-69. Notwithstanding any other provisions of this section, in the event a licensee appeals the suspension of a license, the status quo immediately prior to suspension shall be maintained throughout the pendency of the appeal, up to and including judicial review on the merits as set forth in § 210-69.
§ 210-74 Revocation of license for adult use.
A.
The Planning Board shall revoke a license upon a determination by a preponderance of the evidence that:
(1)
A cause of suspension as set forth in § 210-73 occurs and the license for the adult use establishment has been suspended within the preceding 12 months;
(2)
It is discovered that a licensee gave materially false or misleading information in the materials submitted during the application process;
(3)
A licensee has, with knowledge, permitted the possession, use, or sale of controlled substances on the premises;
(4)
A licensee has, with knowledge, permitted the sale, use, or consumption of alcoholic beverages on the premises in violation of the New York State Alcoholic Beverage Control Law;
(5)
A licensee has, with knowledge, permitted prostitution as defined in the New York State Penal Law on the premises;
(6)
A licensee has, with knowledge, permitted any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur in or on the licensed premises;
(7)
A licensee has, with knowledge, permitted a person under 18 years of age to enter or remain in the establishment; or
(8)
A licensee has attempted to sell his or her license, or has sold, assigned or transferred ownership or control of the adult use to a nonlicensee of the establishment.
B.
Upon revocation of an adult use license, the revocation shall continue for one year, and the licensee shall not be issued an adult use license for one year from the date revocation became effective. A licensee may appeal the revocation of a License to the Zoning Board of Appeals in accordance with the procedure set forth in § 210-69. Notwithstanding any other provisions of this section, in the event the licensee appeals the revocation of a license, the status quo immediately prior to the revocation shall be maintained throughout the pendency of the appeal, up to and including judicial review on the merits.
§ 210-75 No transfer of adult use license.
A.
A licensee shall not transfer his or her adult use license to another, nor shall a licensee operate an adult use under the authority of the licensee at any place other than the address designated in the application and set forth in the adult use license issued by the Town Clerk.
B.
An adult use license shall not be transferable from one location to another.
C.
A noncompliance with this section shall constitute a violation of this article.
D.
Any new applicant seeking a license for an adult use already in operation must also bring a site plan application before the Planning Board.
§ 210-76 Enforcement; penalties for offenses.
A.
Any resident of the Town may file a written complaint with the Zoning and Planning Office alleging a violation of this article. The Zoning and Planning Office shall file said complaint in that office and investigate the same within a reasonable time after receipt. If it is determined by a Code Enforcement Officer that a violation of this article exists, the Code Enforcement Officer shall file a citation for violation of this article.
B.
A citation shall state, at a minimum, the name of the licensee, the nature of the adult use establishment, the date upon which the violation occurred, and the substance of the violation. The citation shall be signed by the issuer.
C.
A Town of Cicero police officer or a Code enforcement officer shall be authorized to issue a citation for any violation of this article. The citation shall be filed with the Zoning and Planning Office and notice of the citation shall be given to the licensee promptly thereafter.
D.
The adult use licensee shall have 15 days from filing of a citation to cure the violation. If the violation is cured within 15 days, no further action shall be taken upon the citation. A record of the citation and a statement by a Code enforcement officer that the citation has been cured shall be kept on file in the Zoning and Planning Office.
E.
If the violation is not cured within 15 days, the citation shall be reviewed by the Planning Board at the next available Planning Board meeting for a determination as to suspension or revocation of the license, as applicable, in accordance with this article.
F.
If a licensee has received two citations within any six-month time period, upon filing of a third citation, the third citation shall be reviewed by the Planning Board at the next available Planning Board meeting for a determination as to suspension or revocation of the license, as applicable, in accordance with this article. This Subsection F shall apply even if the two prior citations were cured within 15 days.
G.
If an adult use establishment continues to be in operation after the suspension, revocation, and/or nonrenewal of an adult use license, a Cicero police officer or a Code enforcement officer shall issue an appearance ticket to the licensee. Such operation shall constitute:
(1)
A violation punishable either by the imposition of a fine not exceeding $350 or imprisonment for a period not exceeding 15 days, or both, for a conviction of a first offense.
(2)
A misdemeanor punishable by a fine of not less than $350 but no more than $700, or imprisonment for a period not to exceed six months, or both, for a second offense.
(3)
A misdemeanor punishable by a fine of not less than $700 but no more than $1,000, or imprisonment for a period not to exceed one year, or both, for a third offense.
H.
If an adult use establishment operates in an area outside the specified adult use Zone, a Cicero police officer or a Code enforcement officer shall issue an appearance ticket to the licensee. Such operation shall constitute a violation and subject to a fine not exceeding $1,500 or 15 days in jail or both.
I.
Each day's continued violation shall constitute a separate, additional violation for which separate and additional fines or civil penalties and/or separate sentences of imprisonment, or both, may be imposed.
J.
Nothing in this article shall be construed to limit the authority of the Town of Cicero to seek and obtain injunctive relief to ensure compliance with this article.
§ 210-77 Location.
A.
Adult uses shall be confined to the real property designated by the following Tax Map numbers, as they exist of the date this article is adopted, in the Town of Cicero: 065.-1-14.0; 065.-01-16.3; 065.-01-16.2 and 065.-01-16.1. Adult uses shall be confined to those portions of the parcels listed herein that are 250 feet or less from the right-of-way line of Oxbow Road.
B.
For purposes of this adult use article, adult uses shall be permitted on the portions of the parcels listed in Subsection A above regardless of the current zoning of the parcel.
C.
Notwithstanding any other provisions of this chapter, adult uses shall be no larger than 5,000 square feet.
D.
Notwithstanding any other provisions of this chapter, adult uses shall be subject to the following setback regulations:
(1)
Front yard: 100 feet.
(2)
Back yard: 50 feet.
(3)
Side yard: 50 feet.
E.
Adult uses shall not be permitted within 1,000 feet of the primary, secondary or tertiary entrance of any park, school or religious institution.
F.
Adult uses shall not be permitted within 500 feet of the primary, secondary or tertiary entrance of any residence.
§ 210-78 Exterior portions of adult use establishment.
A.
It shall be unlawful for an owner or operator of an adult use establishment to allow the merchandise or activities of the establishment to be visible from a point outside the establishment.
B.
It shall be unlawful for the owner or operator of an adult use establishment to allow exterior portions of the establishment to be painted any color other than a single achromatic color. This provision shall not apply to an adult use establishment if the following conditions are met:
(1)
The establishment is a part of a commercial multi-unit center; and
(2)
The exterior portions of each individual unit in the commercial multi-unit center, including the exterior portions of the business, are painted the same color as one another or are painted in such a way so as to be a component of the overall architectural style or pattern of the commercial multi-unit center.
C.
Nothing in this article shall be construed to require the painting of an otherwise unpainted exterior portion of an adult use establishment.
§ 210-79 Signage.
Adult use businesses shall conform with all existing applicable sign regulations in addition to the following specific requirements:
A.
Exterior signs, displays or other advertisements which contain nude, seminude or provocative pictures or silhouettes shall be prohibited.
B.
Signs which are illuminated in neon or which contain flashing lights shall be prohibited.
C.
There shall be no off-premises advertising for adult use establishments.
§ 210-80 Repealer.
All statutes, ordinances, or local laws, or any parts thereof, in conflict with the provisions of this article are hereby superseded or repealed to the extent necessary to give this article full force and effect during its effective period.
§ 210-81 Severability.
If any provision of this article or the application of any other provision to any item in this article is held invalid, the invalidity of that provision or application shall not affect any of the other provisions or the application of those provisions to other items in this chapter or article.
§ 210-82 When effective.
This article shall take effect immediately.