Kendall City Zoning Code
ARTICLE XI
Adult Businesses
§ 265-101 Statutory authorization.
The Constitution and the Legislature of the State of New York have conferred certain powers upon the governing boards of local municipalities for the purpose of regulating the uses of property within the boundaries of such municipality for the purpose of promoting the health, safety, morals or general welfare of the residents of such municipality. That pursuant to the grant of such authority by the Constitution and the provisions of the Town Law, the General Municipal Law, and the Municipal Home Rule Law, the Town Board of Town of Kendall may enact a local law regulating the use of property within the Town of Kendall for such purposes. In some cases, the scope of the authority conferred upon local governing bodies, in particular, the power or authority to regulate or even prohibit certain activities, is subject to Federal Constitutional protections and Congressional Legislative limitations.
§ 265-102 Purpose and intent.
It is the purpose of this article to regulate sexually oriented businesses, to promote the health, safety, morals and general welfare of the citizens of the Town of Kendall and to establish reasonable and uniform regulations to prevent the continued harmful effect of location and concentration of sexually oriented businesses within the Town of Kendall. These regulations 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 these regulations 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 these regulations to condone or legitimize the distribution of obscene materials.
§ 265-103 Permitted uses.
B.
Adult uses shall be a permitted use in any General Business District only, provided that:
(1)
An adult use may not be operated within 1,000 feet of the property line/boundary of:
C.
The structure must be a minimum of 100 feet from the front setback.
D.
An adult use may not be operated in the same building, structure of portion thereof containing another adult use.
E.
For the purpose this article, measurement shall be made in a straight line, without regard to intervening structures or objects, form the nearest portion of the building or structure used as part of the premises where an adult use is conducted to the nearest property line of the premises of a church or public or private elementary or secondary school or to the nearest boundary of an affected public park, residential district or residential lot or child care facility.
F.
For purposes of Subsection B(2)(b) above, the distance between any two adult 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.
G.
All adult uses shall be conducted in an enclosed building. Regardless of location or distance, no one who is passing by an enclosed building having a use governed by these provisions shall be able to visually see any display, decoration, sign, window or other opening, shall not contain any specified anatomical area or any specified sexual activity by virtue of any display which depicts or shows said area or activity or suggests said areas or activity.
H.
All adult uses must have a management-controlled system of access to insure that only persons over the age of 18 years are allowed to enter establishment or area designated for adult use.
§ 265-104 Inspection requirements.
A.
Prior to commencement of any adult use business or upon any transfer of ownership or control, the premises must be inspected and found to be in compliance with all laws, rules and regulations of the Health Department, Fire Department and Town Building and Zoning Enforcement Officer, Fire Marshal and other code enforcement officials.
B.
The Health Department, Fire Department and Town Building and Zoning Enforcement Officer, Fire Marshal and other code enforcement official shall complete their certification that the premises is in compliance or not in compliance of the inspection of the premises by such officials. The certification shall be promptly presented to the Town Building and Zoning Enforcement Officer.
C.
The Town Building and Zoning Enforcement Officer shall suspend the right to conduct such adult use for a period not to exceed 30 days if the officer determines that the owner and/or operator or an employee of the owner and/or operator has:
(1)
Violated or is not in compliance with any section of this article.
(2)
Engaged in excessive use of alcoholic beverages while on the adult use business premises.
(3)
Refused to allow an inspection of the adult use business premises as authorized by this article.
(4)
Knowingly permitted gambling by any person on the adult use business premises.
(5)
Knowingly allowed possession, use or sale of controlled substances on the premises.
(6)
Knowingly allowed prostitution on the premises.
(7)
Knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sexual conduct to occur in or on the permitted and/or licensed premises.
D.
An application or permittee and/or licensee shall permit representatives of the County of State Police Department, Health Department, Fire Department, Zoning and Building Department or other Town departments or agencies to inspect the premises of an adult use business for the purpose of ensuring compliance with the law at any time it is occupied or open for business.
E.
Prior to any suspension, the Town Building and Zoning Enforcement Officer shall provide the owner and/or operator a notice of violations with the grounds for the suspension. The notice stating the grounds shall be provided to the owner and/or operator in writing. The owner and/or operator has the right to present its response to this notice to the Town Building and Zoning Enforcement Officer within 10 days of receipt of said notice. The response may be made in person, orally or in writing. The Town Building and Zoning Enforcement Officer may not suspend the right to conduct such adult use until 15 days after the notice is given to the owner and/or operator or until after receiving the owner's and/or operator's response, whichever is sooner.
§ 265-105 Permit.
A.
No person shall engage in, conduct, or carry on an adult business in the Town of Kendall unless a complete application therefor has been submitted, approved, and a permit issued by the Town of Kendall Code Enforcement Officer.
B.
Each application for an adult business shall be submitted to the Code Enforcement Officer for review by the Town of Kendall Planning Board, shall be accompanied by a nonrefundable application fee, and shall contain the following information:
(1)
The name, residential street address, and residential mailing address (if different) of the applicant.
(2)
The street address and mailing address (if different) of the proposed adult business.
(3)
All other residences of the applicant for the three-year period immediately preceding the date of application.
(4)
The business, occupation, or employment of the applicant for the three-year period immediately preceding the date of the application.
(5)
Applicant must be at least 18 years of age. Must also provide minimum of two forms of state or federally issued identification, one being a photo ID.
(6)
A description of the facilities and services to be available on the premises of the proposed adult business.
(7)
The history of the application in the operation of similar establishments or businesses including, but not limited to, whether or not the person, in previously operating in this state or another city or state under license, has had such permit revoked or suspended and the reason therefore, and the business activity or occupation subsequent to such action of suspension or revocation.
(8)
A criminal record, if any, other than traffic violations of the applicant. If the applicant is an association or partnership, the criminal records of each associate or partner. If the applicant is a corporation, the criminal record of each officer or director of the corporation and each of the stockholders owning more than 10% of the stock of the corporation.
C.
Upon receipt of a complete application and fee as provided for above, the Town of Kendall shall make or cause to be made a thorough investigation of the applicant's background and submit the application to the Town of Kendall Planning Board for review.
§ 265-106 Penalties for offenses. [1]
A violation of any provision of this article shall constitute a violation and shall be subject to immediate suspension of any permit issued by the Town of Kendall, in addition to the penalties set forth in § 265-5 above. Any permit issued may be suspended for period of up to six months or permanently revoked upon conviction of violation of any provisions of this article.