Kingsbury City Zoning Code
ARTICLE VIII
Sexually Oriented Businesses
§ 280-29 Purpose and findings.
A.
Purpose. It is the purpose of this article to regulate sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the Town, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the Town. The provisions of this article 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 article 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 article to condone or legitimize the distribution of obscene material.
B.
Finding. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the Town Board, and on findings incorporated in the cases of City of Renton v. Playtime Theaters, Inc., 475 U.S. 41(1986), Young v. American Mini Theaters, 426 U.S. 50 (1976), FW/PBS, Inc. v. City of Dallas, 493 U.S. 215(1990); Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991), City of Erie v. Pap's A.M., 120 S. Ct. 1382 (2000), and on studies in other communities, including but not limited to, New York City, Village of Washingtonville, New York, Town of Ellicottville, New York, and Kansas City, Kansas; and also on findings from the Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the Town Board 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 the owners of these establishments responsible for the activities that occur on their premises.
(2)
Certain employees of sexually oriented businesses defined in this article as adult theaters and cabarets engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.
(3)
Sexual acts, including masturbation, and oral and anal sex, occur at sexually oriented businesses, especially those which provide private or semiprivate booths or cubicles for viewing films, videos, or live sex shows.
(4)
Offering and providing such space encourages such activities, which creates unhealthy conditions.
(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.
(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.
(7)
Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982, 2,200 in 1983, 4,600 in 1984, 8,555 in 1985 and 253,448 through December 31, 1992.
(8)
As of March 2001, there have been many, many reported cases of AIDS in the State of New York.
(9)
Since 1981 and to the present, there have been an increasing cumulative number of persons testing positive for the HIV antibody test in New York.
(10)
The number of cases of early (less than one year) syphilis in the United States reported annually has risen, with 33,613 cases reported in 1982 and 45,200 through November of 1990.
(11)
The number of cases of gonorrhea in the United States reported annually remains at a high level, with over 1/2 million cases being reported in 1990.
(12)
The Surgeon General of the United States in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn.
(13)
According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(14)
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.
(15)
Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view adult-oriented films.
(17)
Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns.
(18)
A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place a heretofore nonexistent incentive on the operators to see that the sexually oriented business is run in a manner consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the Town. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.
(19)
Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult theaters.
(20)
Requiring licensees of sexually oriented businesses to keep information regarding 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.
(21)
The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.
(22)
It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this article is designed to prevent or who are likely to be witnesses to such activity.
(23)
The fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this article.
(24)
The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to and prevents conduct which leads to the transmission of sexually transmitted diseases.
(25)
The general welfare, health, morals and safety of the citizens of the Town will be promoted by the enactment of this article.
§ 280-30 Definitions.
As used in this article, the following terms shall have the meanings indicated:
Any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are regularly 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 their emphasis upon matter exhibiting specified sexual activities or specified anatomical areas.
A commercial establishment which has as a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or maintains a substantial section of its sales or display space, for the sale or rental, for any form of consideration, of any one or more of the following:
Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, video cassettes, compact discs, slides, or other visual representations which are characterized by their emphasis upon the exhibition or display of specified sexual activities or specified anatomical areas.
Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.
A nightclub, bar, restaurant, or similar commercial establishment which regularly features:
Persons who appear seminude;
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 exhibition or display of specified sexual activities or specified anatomical areas.
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, video cassettes, slides, or other photographic reproductions which are characterized by the exhibition or display 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; and either:
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 seminude, or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
The dominant or principal theme of the object referenced. For instance, when the phrase refers to films "which are distinguished or characterized by an emphasis upon the exhibition or display of specified sexual activities or specified anatomical areas," the films so described are those whose dominant or principal character and theme are the exhibition or display of specified anatomical areas or specified sexual activities.
Describe and pertain to any person who performs any service on the premises of a sexually oriented business, on a full-time, part-time, or contract basis, regardless of whether the person is denominated an employee, independent contractor, agent, or other status. "Employee" does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.
The Town Code Enforcement Officer or such person as may be designated by the Town Board.
A person who, for consideration, agrees or offers to act as a companion, guide, 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:
The opening or commencement of any sexually oriented business as a new business;
The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
The addition of any sexually oriented business to any other existing sexually oriented business; or
The relocation of any sexually oriented business.
A person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually oriented business.
The showing of the human male or female genitals, pubic area, vulva, anus, or anal cleft with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.
To cause to function or to put or keep in a state of doing business. "Operator" means any person on the premises of a sexually oriented business who is authorized to exercise operational control of the business or who causes to function or who puts or keeps in operation the business. A person may be found to be operating or causing to be operated a sexually oriented business regardless of whether that person is an owner, part owner, or licensee of the business.
An individual, proprietorship, partnership, corporation, association, or other legal entity.
The showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. 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, skirt, leotard, bathing suit, or other wearing apparel, provided the areola is not exposed in whole or in part.
Any place where a person appears seminude and is provided to be observed, sketched, drawn, painted, sculptured, or photographed by other persons who pay money or any form of consideration. "Nude model studio" shall not include:
A proprietary school licensed by the State of New York or a college, junior college or university supported entirely or in part by public taxation;
A private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
A structure:
That has no sign visible from the exterior of the structure and no other advertising that indicates a nude or seminude person is available for viewing;
Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and
Where no more than one nude or seminude model is on the premises at any one time.
A business or commercial establishment that as one of its principal business purposes, offers, for any form of consideration, a place where two or more persons may congregate, associate, or consort for the purpose of specified sexual activities. The definition of "sexual encounter establishment" or any sexually oriented businesses 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.
An adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion-picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
Any of the following offenses: prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity relating to a sexually oriented business; sexual assault; molestation of a child; distribution of a controlled substance; or any offenses similar to those described above under the criminal or penal code of other states or countries; for which:
Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
Less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty-four-month period.
The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant. |
Any of the following:
The increase in floor areas occupied by the business by more than 25%, as the floor areas exist on the date this article takes effect.
Includes any of the following:
The sale, lease or sublease of the business;
The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
§ 280-31 Classification.
§ 280-32 License required; application.
A.
It is unlawful:
(1)
For any person to operate a sexually oriented business without a valid sexually oriented business license issued by the Town pursuant to this article.
(2)
For any person who operates a sexually oriented business to employ a person to work for the sexually oriented business who is not licensed as a sexually oriented business employee by the Town pursuant to this article.
(3)
For any person to obtain employment with a sexually oriented business without having secured a sexually oriented business employee license pursuant to this article.
B.
An application for a license must be made on a form provided by the Town. All applicants must be qualified according to the provisions of this article.
C.
An applicant for a sexually oriented business license or a sexually oriented business employee license shall file with the Town Code Enforcement Officer a completed application made on a form prescribed and provided by the Town. An application shall be considered complete if it includes the information required in this section. The applicant shall be qualified according to the provisions of this article. The application shall be notarized. The application shall include the information called for in Subsection C(1) through (6) as follows:
(1)
The full true name and any other names used in the preceding five years.
(2)
Current business address.
(3)
Either a set of fingerprints suitable for conducting necessary background checks pursuant to this chapter or the applicant's social security number to be used for the same purpose.
(4)
If the application is for a sexually oriented business license, the name, business location, legal description, business mailing address and phone number of the proposed sexually oriented business.
(5)
Written proof of age, in the form of either a copy of a birth certificate and current photo, a current driver's license with picture, or other picture identification document issued by a governmental agency.
(6)
The issuing jurisdiction and the effective dates of any license or permit held by the applicant relating to a sexually oriented business, whether any such license or permit has been denied, revoked or suspended and, if so, the reason or reasons therefor.
(7)
If the application is for a sexually oriented business license, the name and address of the statutory agent or other agent authorized to receive service of process. The information provided pursuant to Subsection C(1) through (7) of this section shall be supplemented in writing by certified mail, return receipt requested, to the Code Enforcement Officer within 10 working days of a change of circumstances which would render the information originally submitted false or incomplete.
D.
The application for a sexually oriented business license shall be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.
E.
If a person who wishes to operate a sexually oriented business is an individual, he shall sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, such as a corporation, each officer, director, general partner or other person who will participate directly in decisions relating to management of the business shall sign the application for a license as applicant. Each applicant must be qualified under § 280-33, and each applicant shall be considered a licensee if a license is granted.
F.
A person who possesses a valid business license is not exempt from the requirement of obtaining any required sexually oriented business license. A person who operates a sexually oriented business and possesses a business license shall comply with the requirements and provisions of this chapter, where applicable.
G.
The information provided by an applicant in connection with the application for a license under this chapter shall be maintained by the Code Enforcement Officer on a confidential basis and may be disclosed only to other governmental agencies in connection with a law enforcement or public safety function or as may otherwise be required by law or court order.
§ 280-33 Issuance of license.
A.
Upon the filing of a completed application for a sexually oriented business license or a sexually oriented business employee license, the Enforcement Officer shall issue a temporary license to the applicant, which temporary license shall expire upon the final decision of the Code Enforcement Officer to deny or grant the license. Within 20 days after the receipt of a completed application, the Code Enforcement Officer shall either issue a license or issue a written notice of intent to deny a license to the applicant. The Code Enforcement Officer shall approve the issuance of a license unless one or more of the following is found to be true:
(1)
An applicant is less than 18 years of age.
(2)
An applicant is delinquent in the payment to the Town of taxes, fees, fines, or penalties assessed against or imposed upon the applicant in relation to a sexually oriented business.
(3)
An applicant has failed to provide information as required by § 280-32 for issuance of the license.
(4)
An applicant, a business entity for which the applicant had, at the time of an offense leading to a criminal conviction described herein, a management responsibility or a controlling interest, has been convicted of a specified criminal activity as defined in this chapter. The fact that a conviction is being appealed shall have no effect.
(5)
The license application fee required by this article has not been paid.
(6)
An applicant has falsely answered a question or request for information on the application form.
(7)
The proposed sexually oriented business is located in a zoning district other than a district in which sexually oriented businesses are allowed to operate under this article or is not in compliance with the location restrictions established for sexually oriented businesses in the appropriate zoning district(s).
B.
An applicant ineligible for a license due to Subsection A(4) of this section may qualify for a sexually oriented business license only when the time period required by the applicable subsection has elapsed.
C.
The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the number of the license issued to that applicant, the expiration date, and, if the license is for a sexually oriented business, the address of the sexually oriented business. A sexually oriented business employee license shall contain a photograph of the licensee. The sexually oriented business license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time. A sexually oriented business employee shall keep the employee's license on his or her person or on the premises where the licensee is then working or performing and shall produce such license for inspection upon request by a law enforcement officer or other authorized Town official.
§ 280-34 Fees.
A.
The nonrefundable initial license fee and annual renewal fee for a sexually oriented business license or a sexually oriented business employee license shall be set by the Town Board at an amount determined to be sufficient to pay the cost of administering this program, subject to Subsection B herein.
B.
In no event shall the fees exceed $500 for the initial license and $125 for the renewal fee for a sexually oriented business license. In no event shall the fees exceed $100 for the initial license and $50 for the renewal fee for a sexually oriented business employee license.
§ 280-35 Inspection.
A.
An applicant, operator or licensee shall permit law enforcement officers and any other federal, state, county or Town agency in the performance of any function connected with the enforcement of this article normally and regularly conducted by such agencies to inspect those portions of the premises of a sexually oriented business where patrons or customers are permitted to occupy for the purpose of ensuring compliance with this chapter at any time the business is occupied or open for business.
B.
The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation.
§ 280-36 Expiration of license.
A.
Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in § 280-32. Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected.
B.
When the Town denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the Town finds that the basis for denial of the renewal license has been corrected or abated, the applicant shall be granted a license if at least 90 days have elapsed since the date denial became final.
§ 280-37 Suspension of license.
The Town shall issue a written intent to suspend a license for a period not to exceed 30 days if it determines that a licensee or an employee of a licensee has:
§ 280-38 Revocation of license.
A.
The Code Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license if a cause of suspension in § 280-37 occurs and the license has been suspended within the preceding 12 months.
B.
The Code Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license if the Officer determines that:
(1)
A licensee gave false or misleading information in the material submitted during the application process;
(2)
A licensee has knowingly allowed possession, use or sale of controlled substances on the premises;
(3)
A licensee has knowingly allowed prostitution on the premises;
(4)
A licensee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; or
(5)
A licensee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sex act to occur in or on the licensed premises. This subsection will not apply to an adult motel, unless the licensee knowingly allowed sexual activities to occur either in exchange for money or in a public place or within public view.
C.
The fact that a conviction is being appealed shall have no effect on the revocation of the license.
D.
When, after the notice and hearing procedure described in § 280-39, the Enforcement Officer revokes a license, the revocation shall continue for one year, and the licensee shall not be issued a sexually oriented business license for one year from the date revocation becomes effective, provided that, if the conditions of § 280-39D are met, a provisional license will be granted pursuant to that section. If, subsequent to revocation, the Code Enforcement Officer finds that the basis for the revocation found in Subsection B(1) and (4) of this section has been corrected or abated, the applicant shall be granted a license if at least 90 days have elapsed since the date the revocation became effective.
§ 280-39 Hearing; license denial, suspension or revocation; appeal.
A.
If the Code Enforcement Officer determines that facts exist for denial, suspension or revocation of a license under this article, the Enforcement Officer shall notify the applicant or licensee (respondent) in writing of the intent to deny, suspend or revoke the license, including the grounds therefor, by personal delivery or by certified mail. The notification shall be directed to the most current business address on file with the Code Enforcement Officer. Within 10 working days of receipt of such notice, the respondent may provide to the Code Enforcement Officer and Town Clerk in writing a response that shall include a statement of reasons why the license or permit should not be denied, suspended or revoked. Within three days of the receipt of the respondent's written response, the Town Clerk shall notify respondent in writing of the hearing date on the respondent's denial, suspension or revocation proceeding.
B.
Within 10 working days of the receipt of the respondent's written response, the Town Board shall conduct a hearing at which the respondent shall have the opportunity to be represented by counsel and present evidence and witnesses on his or her behalf. If a response is not received by the Town Clerk and Code Enforcement Officer in the time stated, or if after the hearing the Town Board finds that grounds as specified in this resolution exist for denial, suspension, or revocation, then such denial, suspension, or revocation shall become final five days after the Town Clerk sends, by certified mail, written notice that the license has been denied, suspended, or revoked. Such notice shall include a statement advising the applicant or licensee of the right to appeal such decision to a court of competent jurisdiction.
C.
If the Town Board finds that no grounds exist for denial, suspension or revocation of a license, then within five days after the hearing the Town Board shall withdraw the intent to deny, suspend or revoke the license and the Town Clerk shall so notify the respondent in writing by certified mail of such action and shall contemporaneously therewith issue the license.
D.
When a decision to deny, suspend or revoke a license becomes final, the applicant or licensee (aggrieved party) whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal such action to a court of competent jurisdiction. Upon the granting of a temporary restraining order or a preliminary injunction of the Town's enforcement of the denial, suspension, or revocation, the Town shall immediately issue the aggrieved party a provisional license. The provisional license shall allow the aggrieved party to continue operation of the sexually oriented business or to continue employment as a sexually oriented business employee and will expire upon the court's entry of a judgment on the aggrieved party's action to appeal, challenge, restrain or otherwise enjoin the Town's enforcement.
§ 280-40 Transfer of license.
A licensee shall not transfer his/her license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application.
§ 280-41 Location of sexually oriented businesses.
A.
A person commits a misdemeanor if that person operates or causes to be operated a sexually oriented business in the Kingsbury Industrial Park or in any zoning district other than the district area defined herein.
B.
A person commits an offense if the person operates or causes to be operated a sexually oriented business within 500 feet of:
(1)
A church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities;
(2)
A public or private educational facility, including but not limited to child day-care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities; "school" includes the school grounds but does not include facilities used primarily for another purpose and only incidentally as a school;
(4)
A public park or recreational area which has been designated for park or recreational activities, including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas, or other similar public land within the Town which is under the control, operation, or management of the Town's park and recreation authorities;
(5)
The property line of a lot devoted to a residential use as defined in this chapter;
(6)
An entertainment business which is oriented primarily towards children or family entertainment; or
(7)
A licensed premises, licensed pursuant to the alcoholic beverage control regulations of the state.
C.
A person commits a misdemeanor if that person causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 500 feet of another sexually oriented business.
D.
A person commits a misdemeanor if that person causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.
E.
For the purpose of Subsection B of this section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the building or structure used as the part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a use listed in Subsection B. Presence of a town, county or other political subdivision boundary shall be irrelevant for purposes of calculating and applying the distance requirements of this section.
F.
For purposes of Subsection C of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is located.
G.
Any sexually oriented business lawfully operating on the effective date of this article that is in violation of Subsections A through F of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed one year, unless sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. Such nonconforming uses shall not be increased, enlarged, extended, or altered, except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 500 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is/are nonconforming.
H.
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 use listed in Subsection B of this section within 500 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application is made for a license after the applicant's previous license has expired or been revoked.
§ 280-42 Exhibition of sexually explicit films, videos or live entertainment in viewing rooms.
A.
A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than 150 square feet of floor space a film, video cassette, live entertainment, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:
(1)
Upon application for a sexually oriented license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The Town may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
(2)
The application shall be sworn to be true and correct by the applicant.
(3)
No alteration in the configuration or location of a manager's station may be made without the prior approval of the Town.
(4)
It is the duty of the licensee of the premises to ensure that at least one licensed employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.
(5)
The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding rest rooms. Rest rooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.
(6)
It shall be the duty of the licensee to ensure that the view area specified in Subsection A(5) remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection A(1) of this section.
(7)
No viewing room may be occupied by more than one person at any time.
(8)
The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than five footcandles as measured at the floor level.
(9)
It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
(10)
No licensee shall allow openings of any kind to exist between viewing rooms or booths.
(11)
No person shall make or attempt to make an opening of any kind between viewing booths or rooms.
(12)
The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist.
(13)
The licensee shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.
(14)
The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within 48 inches of the floor.
§ 280-43 Escort agencies.
§ 280-44 Public nudity.
A.
It shall be a misdemeanor for a person who knowingly and intentionally, in a sexually oriented business, appears in a state of nudity or engages in specified sexual activities.
B.
It shall be a misdemeanor for a person who knowingly or intentionally, in a sexually oriented business, appears in a seminude condition unless the person is an employee who, while seminude, shall be at least six feet from any patron or customer and on a stage at least two feet from the floor.
C.
It shall be a misdemeanor for an employee, while seminude in a sexually oriented business, to receive directly any pay or gratuity from any patron or customer or for any patron or customer to pay or give any gratuity directly to any employee while said employee is seminude in a sexually oriented business.
D.
It shall be a misdemeanor for an employee, while seminude, to knowingly and intentionally touch a customer or the clothing of a customer.
§ 280-45 Prohibition against children in sexually oriented businesses.
A person commits a misdemeanor if the person knowingly allows a person under the age of 18 years on the premises of a sexually oriented business.
§ 280-46 Hours of operation.
No sexually oriented business, except for an adult motel, may remain open at any time between the hours of 12:00 midnight and 8:00 a.m. on weekdays and Saturdays, and 12:00 midnight and noon on Sundays.
§ 280-47 Exemptions.
It is a defense to prosecution under § 280-45 that a person appearing in a state of nudity did so in a modeling class operated:
A.
By a proprietary school, licensed by the State of New York; a college, junior college, or university supported entirely or partly by taxation;
B.
By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
C.
In a structure:
(1)
Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and
(2)
Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and
(3)
Where no more than one nude model is on the premises at any one time.
§ 280-48 Injunction.
A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of this article is subject to a suit for injunction as well as prosecution for criminal violations. Such violations shall be punishable by a fine of $200 or 30 days' imprisonment. Each day a sexually oriented business so operates is a separate offense or violation.