Jerusalem Town City Zoning Code
ARTICLE XX
Adult Entertainment Businesses
[Added 10-18-2006 by L.L. No. 6-2006; amended 2-21-2007 by L.L. No. 1-2007; 6-20-2007 by L.L. No. 3-2007; 4-16-2008 by L.L. No. 2-2008]
§ 160-104 Intent.
The Jerusalem Town Board, after review of its Adult Entertainment Use Study, dated March 23, 2005, finds that adult entertainment uses, by virtue of their nature, often have negative secondary effects. Secondary effects include crime rates, impact on real estate, traffic, noise and general neighborhood appearance. It is the intent of the Jerusalem Town Board that special regulation of adult entertainment businesses is necessary to protect the health, safety and welfare of its citizens.
§ 160-105 Purpose.
The Jerusalem Town Board has determined that special regulation is necessary to mitigate the secondary effects of adult entertainment uses while protecting freedom of speech.
§ 160-106 Definitions.
As used in this article, the following terms shall have the meanings indicated:
ADULT ENTERTAINMENT BUSINESS
This term shall include adult use, adult use business or adult entertainment or those businesses distinguished or characterized by an emphasis on the depiction of or description of specified sexual activities or specified anatomical areas, including but not limited to an adult arcade, adult cabaret, adult media, adult media outlet, adult motel, adult motion-picture theater, adult mini-motion-picture theater, escort agency, sexual encounter center and/or any other commercial establishment where a portion of the principal business is of an adult nature or use.
A.
Adult arcade — Any place to which the public is permitted or invited wherein electronically or mechanically controlled still or motion-picture machines, projectors, computers, 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 depiction or description of a specified sexual activity or specified anatomical areas.
B.
Adult cabaret — A building or portion of a building regularly featuring dancing or other live entertainment if such building or portion of a building as a prevailing practice excludes minors by virtue of age, or if the dancing or entertainment is distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons therein.
C.
Adult media — Magazines, books, videotapes, movies, slides or other media which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas where the prevailing practice excludes minors by virtue of age.
D.
Adult motel — A hotel, motel or similar commercial establishment which:
(1)
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; which advertises the availability of sexually oriented types of material by means of a sign visible from the public right-of-way, or by means of off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets, leaflets, internet, radio or television; or
(2)
Offers sleeping rooms for rent on a regular basis for a period of time that is less than 10 hours; or
(3)
Allows a tenant or occupant of a room to sublease the room for a period of fewer than 10 hours.
E.
Adult motion picture theater — A building or portion of a building with a capacity of 50 or more persons used for presenting material if such building or portion of a building, as a prevailing practice, excludes minors by virtue of age, or if such material is distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons therein.
F.
Adult media outlet — An establishment that rents or sells books, magazines, videotapes, slides, movies or other media, and meets either of the following tests: more than 25% of the gross floor area is devoted to adult media or on-site advertising; or more than 25% of the business's gross revenue results from the sale or rental of adult materials.
G.
Adult mini-motion picture theater — A building or portion of a building with a capacity for less than 50 persons used for presenting material if such building or portion of a building as a prevailing practice excludes minors by virtue of age, or if such material is distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons therein.
H.
Escort — A person who, for a fee, tip or other compensation, agrees to or offers any of the following: act as a date for another person, including specified sexual activity; privately model lingerie for another person; or privately perform a striptease for another person.
I.
Escort Agency — A person or business association who or which furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
J.
Sexual encounter center — A business or commercial enterprise that as one of its primary business purposes offers for any form of consideration:
(1)
Physical contact in the form of wrestling or tumbling between two persons of the opposite sex or persons of the same sex; or
(2)
Activities between two persons of the opposite sex or persons of the same sex when one of the persons is in the state of nudity or seminudity.
K.
A principal or primary business purpose exists if the services offered are intended to generate business income.
L.
The term "adult entertainment business" shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.
BUSINESS
Any person, firm, association, partnership, corporation or other entity for profit.
NUDITY or STATE OF NUDITY
The appearance of the human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals, or vulva, with less than opaque covering; or of a female breast with less than a fully opaque covering of any part of the areola; or of human male genitals in a discernibly turgid state even if completely and opaquely covered.
PERSON
Any individual, proprietorship, firm, partnership, corporation, club, association or legal representative acting individually or jointly, limited-liability company, association or other legal entity.
SEMINUDE or SEMINUDITY
A state of dress in which clothing covers no more that the genitals, pubic region and areola of the female breasts, as well as portions of the body covered by the supporting straps or devices.
SEXUAL ACTIVITIES
Any act of masturbation, sadomasochism, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area or buttocks.
SPECIFIED ANATOMICAL AREAS
These include:
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 genitals in a discernible turgid state, even if completely and opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
This term includes any of the following:
A.
The fondling or other erotic touching of human genitals, pubic regions, buttocks, anus or female breasts, whether covered or uncovered;
B.
Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;
C.
Masturbation, actual or simulated;
D.
Excretory functions as part of or in connection with any of the activities set forth in Subsections A, B and C above.
SUBSTANTIAL CONNECTION
A.
In a sole proprietorship, an individual who owns, operates, controls or conducts, directly or indirectly, any premises, building, or location upon which any adult use takes place.
B.
In partnership, limited or general, an individual who shares in the ownership or control of any of the assets of the partnership.
C.
In a corporation, an individual who is an officer, director or holder, either directly or indirectly or beneficially, of more than 20% of any class of stock.
§ 160-107 Location restrictions.
An adult entertainment business shall be permitted only in the Agricultural-Residential Use District.
A.
No adult entertainment business shall be permitted within 1,000 feet of either side of the following:
(1)
State Route 54A.
(2)
Guyanoga Road from its intersection with State Route 54A to the Jerusalem Town line.
(3)
Italy Hill Road from its intersection with State Route 54A to the intersection of Darby’s Corners Road.
(4)
Darby’s Corners Road from its intersection with Italy Hill Road to the Jerusalem Town line.
(5)
Skyline Drive.
B.
No adult entertainment business shall be established within 1,000 feet of the property line of any of the following sensitive use sites:
(1)
A public or private school exempt from real property taxation pursuant to the New York Real Property Tax Law.
(2)
A church or other house of worship.
(3)
A licensed day-care center, nursery school or preschool.
(4)
A public library.
(5)
A public or private park, playground, campground or environmental land or animal preserve.
(6)
A public or private recreation or community center.
(7)
A senior citizen center.
(8)
A fire station or ambulance/emergency response facility.
(9)
An establishment serving alcoholic beverages.
C.
No adult entertainment business shall be established within 1,000 feet of any residential dwelling.
D.
An adult use shall not be operated within 1,000 feet of another adult use or on the same lot or parcel of land as any other adult use.
E.
An adult use shall not be operated in the same building or portion thereof containing another adult use.
§ 160-108 Other restrictions.
A.
Viewing rooms and booths:
(1)
Any adult entertainment business or use which provides or contains private booths or viewing rooms for the viewing of film, video cassettes, CDs, DVDs or other video reproductions shall comply with the following regulations:
(a)
Any and all such booths, cubicles, studios and rooms for the private viewing of adult motion pictures shall be open to public view from the common areas of the establishment and there shall not be any doors, curtains, blinds or other structures or devices that shall impede observation of the entire area of such private viewing areas from the common area of the establishment.
(b)
All such private booths, viewing rooms or areas shall be well lighted and readily accessible at all times and shall continuously be open to view.
(c)
No such private booths, viewing rooms or areas shall be occupied by more than one person at any time.
(2)
No openings of any kind shall be permitted to exist between such private booths, viewing rooms or areas.
B.
All adult use businesses shall be conducted in an enclosed building. It shall be a violation to display or exhibit in the open air (outside of the establishment), through a window, or by means of a depiction or decoration, or to allow to be displayed or exhibited, any specified anatomical areas or specified sexual activities.
C.
The exterior appearance of any building containing an adult use business shall be consistent with the character of the surrounding structures and shall not detract from the appearance of the neighborhood.
D.
Only one exterior sign at the site shall be allowed and it will be limited to only the name of the establishment, it shall not contain any photographic or artistic representation of the human body and must conform to all the other Town of Jerusalem signage laws.
E.
Parking shall be in compliance with § 160-54 of this code unless conditions are stated differently in the site plan or special use permit.
F.
It shall be unlawful to operate an adult entertainment use between the hours of 12:00 midnight and 8:00 a.m.
G.
Alcoholic beverage consumption is prohibited on any adult use site.
H.
Live entertainment is prohibited at any adult use site.
I.
Prohibitions involving children. No person shall knowingly allow a person under the age of 18 years on the premises of an adult entertainment business or use.
J.
No owner, manager, supervisor or employee of the adult entertainment business shall touch any patron or customer or the clothing of a patron or customer while on the premises.
K.
A separate license shall be required for each adult entertainment business on the same premises. Premises having one or more such licenses shall not be allowed to have any additional adult entertainment business without the issuance of an additional license for each such additional adult entertainment business.
§ 160-109 License required.
No person, firm, partnership, corporation or other entity shall operate or cause to be operated an adult entertainment use unless a valid license has been issued for such use by the Town of Jerusalem.
§ 160-110 Application for license.
A.
An application for a license to operate an adult entertainment use shall be made to the Town Clerk, in a form prescribed by the Town Clerk, which application shall be submitted under oath and shall supply the following information:
(1)
The name, address and phone number of the person, business or establishment applying for an adult entertainment use.
(2)
The exact nature of the adult entertainment use and hours of its operation.
(3)
A description of the location of the use and a description of all adjacent properties and uses.
(4)
A copy of the site plan approval, as granted by the Town of Jerusalem Planning Board.
(5)
A statement of the nature and character of the applicant's other business or businesses, if any, to be carried on in conjunction with the adult entertainment use.
(6)
The name or names of the person or persons who will manage or supervise the applicant's business.
(7)
The names, business and home addresses and business and home and cell phone numbers of all those persons or businesses having substantial connection with the business or establishment to be licensed.
(8)
If applicable, a disclosure of the criminal record, if any, of any person who will manage or supervise the applicant's business or of any person having a substantial connection with the business or establishment to be licensed. Disclosure of convictions of crimes punishable to §§ 230 through 245 of the New York State Penal Law shall be disclosed if the same have occurred within a two-year period preceding the date of the application.
(9)
The status of all other required local and state approvals.
B.
Certificate of compliance. The application shall be accompanied by a certificate of compliance from the Town Code Enforcement Officer that certifies compliance with this article, all other applicable zoning, development, and land use regulations of the Town, and the NYS Fire Protection and Building Code.
C.
Fee. An application for adult entertainment use license shall be accompanied by a nonrefundable fee in the amount as the Town of Jerusalem may from time to time establish by resolution.
D.
Completeness. The application shall not be complete until all of the information required by Subsection A, the certificate required by Subsection B, and the fee required by Subsection C are received by the Town Clerk. The application shall not be deemed complete when the applicant shall have been convicted of a violation of this Code within the previous five years. When the application is complete, the Town Clerk shall accept it and forward it to the Town Board for its review and consideration.
E.
Notice to neighbors. When the application is complete, the Town Clerk, by ordinary mail, shall notify the owners of all properties within 2,000 feet of the premises to be licensed of the receipt of the application, the name and address of the applicant, the premises to be licensed, the nature of the use applied for, and the owner’s privilege of submitting written comment to the Town Board within 10 business days of the mailing of the notice. For this purpose, the term “owner” shall mean the owner listed on the current tax roll of the Town of Jerusalem.
F.
Action by the Town Board. The Town Board shall act on the application within 30 days of receipt from the Town Clerk.
G.
Issuance. The Town Clerk shall issue the license within 10 days of the resolution of the Town Board approving it.
H.
Inspection requirements. The owner or operator or an employee or agent of an adult entertainment business shall permit representatives of the Town of Jerusalem, the Yates County Sheriff’s Department, the New York State Police, the State Department of Health, local fire departments or any Town, county or state department or agency that has permitting authority regarding the use of the premises to inspect said premises for the purpose of ensuring compliance with this article at any time said business is occupied or open for business, without prior notice.
§ 160-111 Grounds for denial or revocation of license.
The Town Board may deny or revoke a license on any of the following grounds:
A.
That the use is prohibited by any local or state law or local law or ordinance.
B.
That the applicant has falsified or failed to provide information required in the application for the issuance or amendment of an adult entertainment use license under this chapter.
C.
That an inspection of the premises reveals that any applicable laws, ordinances, codes, rules and regulations pertaining to structure, fire, and safety have not been complied with.
D.
That any persons managing or supervising the applicant's or licensee's business or any person having a substantial connection with the business or establishment has been convicted of a felony or a crime punishable pursuant to §§ 230 through 245 of the New York State Penal Code within a period of two years prior to the date of application.
E.
That any person managing or supervising a licensed adult entertainment use or any person having a substantial connection with such a licensed use has been charged and found guilty of a misdemeanor or felony.
F.
That the applicant or any person, business or establishment having a substantial connection with the business or establishment for which an application is made has had any license issued under this chapter revoked for cause during the preceding one-year period. If this license is revoked, the Town Clerk shall notify the licensee in writing, by certified mail, of the revocation.
G.
That the owner, operator, or any person managing or supervising an adult entertainment business, or an employee thereof, has allowed any of the following to occur on the business premises:
(1)
Any illegal gambling.
(2)
Any act of sexual intercourse, sodomy, oral copulation, masturbation or other specified sexual activities.
(3)
Any possession, use or sale of a controlled substance.
H.
That the owner, operator, or any person managing or supervising an adult entertainment business, or an employee thereof, refuses to permit a lawful inspection of the premises at any time said premises is occupied or open for business.
§ 160-112 Term of license.
Any license issued to operate an adult entertainment use shall expire on the 31st day of December succeeding its date of issue, unless revoked.
§ 160-113 Display of license.
A licensee under this chapter shall cause the license for an adult entertainment use to be conspicuously displayed, in full view of patrons, at the location stated in such license.
§ 160-114 Renewal of license.
A valid adult entertainment use license may be renewed for a period of one year at a time by following the license application procedures in § 160-110 above. Such renewal application must be submitted at least 30 days prior to the expiration of the current license, and the same shall be granted unless the applicant is found to be in violation of any of the subsections or instances in § 160-111 hereof.
§ 160-115 Transfer of license.
No license issued under the provisions of this article shall be transferred or assigned to any person or used by any person other than the licensee to whom it was issued, nor shall such license be used or displayed at any location other than the location stated in such license.
§ 160-116 Compliance with other standards required.
All adult entertainment uses licensed under this chapter must comply with the applicable laws, regulations and standards imposed by New York State, local land use control laws and any conditions imposed by any local governing body, board or agency.
§ 160-117 Penalties for offenses.
A.
Any licensee found guilty of violating any provisions of this article shall be guilty of a violation and shall be subject to a fine not to exceed $250 or to imprisonment for a period not to exceed 15 days, or to both such fine and imprisonment.
B.
The continuation of an offense under this article, after notice of such, shall constitute, for each day the offense continues, a separate and distinct violation hereunder.
C.
The continuation of an offense under this article, after notice of such, will constitute grounds for immediate revocation of the license to operate.
D.
Notwithstanding Subsections A through C of this section, a violation of § 160-108I, § 160-108K or § 160-111H of this article shall be a misdemeanor.
§ 160-117.1 Validity.
Should any section or provision of this article be declared by a court of competent jurisdiction to be invalid, such declaration shall not affect the validity of this article as a whole or any other part thereof.