Newfane Town City Zoning Code
ARTICLE VIIIA
Adult Entertainment Uses
[Added 12-28-2006 by L.L. No. 6-2006]
§ 270-8A.1 Findings and legislative intent.
It is recognized that there are some uses which, because of their very nature, have serious objectionable operational characteristics under certain circumstances, which produce a deleterious effect upon adjacent areas. Special regulation of these uses is necessary to ensure that adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood. The Town Board of the Town of Newfane finds it in the public interest to enact these regulations. The purpose of these regulations is to prevent or lessen the secondary effects of adult entertainment uses, and not to inhibit freedom of speech.
The unrestrained proliferation and inappropriate location of such businesses is inconsistent with existing development and future plans for the Town of Newfane in that they often result in influences on the community which increase the crime rate and undermine the economic and social welfare of the community. The deleterious effects of these businesses change the economic and social character of the existing community and adversely affect existing businesses and community and family life.
§ 270-8A.2 Definitions.
As used in this article, the following terms shall have the meanings indicated:
An establishment having as a substantial or significant portion of its stock-in-trade books, magazines, periodicals, or other printed matter or photographs, films, videos, slides or other visual representations which are characterized by the exposure of or emphasis on specified sexual activities or specified anatomical areas or instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities which are for sale, rental or viewing on or off the premises.
A public or private establishment which regularly presents topless and/or bottomless dancers, strippers, waiters or waitresses, male or female impersonators, lingerie models or exotic dancers, or other similar entertainment or films, motion pictures, videos, slides or other photographic material, or which utilizes employees that, as part of their employment, regularly expose patrons to specified sexual activities or specified anatomical areas.
A theater, concert hall, auditorium or similar establishment which, for any form of consideration, regularly features live performances characterized by the exposure of specified sexual activities or specified anatomical areas.
Any motion-picture theater where, for any form of consideration, films, motion pictures, videocassettes, slides or other photographic reproductions are shown, and in which a substantial portion of the total presentation time is devoted to the showing of material characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.
Any establishment having a fixed place of business where massages are administered for pay, including but not limited to massage parlors, sauna baths or steam baths. This definition shall not be construed to include a hospital, nursing home or medical clinic or the office of a physician, surgeon, chiropractor, osteopath, duly licensed physical therapist, or duly licensed massage therapist or barbershop or beauty salon, athletic club, health club, school, spa or similar establishment where massage or similar manipulation of the human body is offered as an incidental accessory service.
Any place where a person who appears in a state of nudity or who displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons who pay money or any form of consideration.
A theater which presents materials distinguished or characterized by primary emphasis on matters depicting, describing or relating to specified sexual activities or specified sexual anatomical areas, in the form of live shows, films or videotapes, viewed from an individual enclosure, for which a fee is charged.
§ 270-8A.3 Locational restrictions.
Adult entertainment uses shall be permitted only in the Light Industry/Industrial Park (IP) Zone, subject to the following restrictions:
Adult entertainment uses are prohibited within:
Five hundred feet of any zoning district which is zoned to allow residential use.
Five hundred feet of any single-family, two-family, or multiple-family dwelling, including structures devoted to both residential and commercial or business purposes;
Five hundred feet of any public or private school;
Five hundred feet of any church or other religious facility or institution;
Five hundred feet of any public park, public bike path, playground or playing field, cemetery, civic or recreational facility.
No adult entertainment use shall be allowed within 500 feet of another existing adult entertainment use.
No more than one adult entertainment use shall be located on any lot.
The distances provided hereinabove shall be measured by following a straight line, without regard to intervening buildings, from the nearest point of the property parcel upon which the adult entertainment use is to be located to the nearest point of the parcel of property or the land use district boundary line from which the adult entertainment use is to be separated.
§ 270-8A.4 Other restrictions.
No adult entertainment use shall be conducted in any manner that allows the observation of any material depicting, describing or relating to specified sexual activities or specified anatomical areas from any public way or from any property not containing an adult entertainment use. This provision shall apply to any display, decoration, sign, show, window or other opening.
There shall be no outdoor sign, display, or advertising of any kind other than one identification sign limited to only the name of the establishment.
Adult entertainment uses shall meet all other regulations of the Town of Newfane, including but not limited to district lot and bulk regulations, parking regulations and signage.
It shall be unlawful to operate an adult entertainment use between the hours of 2:00 a.m. and 8:00 a.m.
No person under the age of 21 years shall be permitted on or within the premises of an adult entertainment business.
§ 270-8A.5 Permit required.
No person shall engage in, conduct, or carry on an adult entertainment business in the Town of Newfane unless a complete application therefor has been submitted, approved, and a permit issued by the Town of Newfane Zoning Enforcement Officer (ZEO).
Each application for an adult business shall be submitted to the ZEO, contain all the information described below, and be accompanied by a nonrefundable application fee of $500:
The name, residential street address, and residential mailing address (if different) of the applicant.
The street address and mailing address (if different) of the proposed adult business.
All other residences of the applicant for the three-year period immediately preceding the date of the application.
The business, occupation, or employment of the applicant for the three-year period immediately preceding the date of the application.
Written proof that the applicant is 21 years of age or older.
A complete set of the applicant's fingerprints.
A description of the facilities and services to be available on the premises of the proposed adult business.
The history of the applicant in the operation of similar establishments or businesses, including, but not limited to, whether or not the person, previously operating in this state or another city or state under license, has had such permit revoked or suspended and the reason therefor, and the business activity or occupation subsequent to such action of suspension or revocation.
The criminal record, if any, other than misdemeanor traffic violations, of the applicant; if the applicant is an association or partnership, the criminal record of each officer or director of the corporation and each of the stockholders owing more than 10% of the stock of the corporation; if the applicant is a limited-liability company, the criminal record of each of the members and managers of the limited-liability company.
A scale site plan showing. North arrow, drawing scale, Tax Map number, property boundaries and dimensions, existing and proposed buildings and dimensions, proposed grading and drainage, vegetation, parking, driveways, lighting, signs, refuse containers, fences, water source, sewage system and any other pertinent information that may be deemed necessary by the Town of Newfane Planning Board and site plan requirements of the Town of Newfane.
Upon receipt of a complete application and fee as provided for above, the ZEO shall make or cause to be made a thorough investigation of the applicant's criminal record, and shall review the site plan for compliance with the provisions of this chapter.
§ 270-8A.6 Approval, denial, suspension or revocation of permit.
Permit approval. A permit application may be approved by the ZEO where it appears that the applicant has not been convicted of any offense which would be cause for denial of a permit upon an original application, has not made false statements on an application for a permit, has not previously owned or operated an adult business which resulted in suspension or revocation of permits or licenses, and has not committed an act in violation of this chapter. The ZEO shall issue a permit within five days of completing his investigation and concluding that issuance of the permit is warranted. A copy of the permit shall be filed in the office of the Town Clerk.
Permit denial. A permit application may be denied by the ZEO where it appears that the applicant has been convicted of any offense which would be cause for denial of a permit upon an original application, or has made a false statement on an application for a permit, or has previously owned or operated an adult business which resulted in suspension or revocation of permits or licenses, or has committed an act in violation of this chapter. The ZEO shall give the applicant a written notice specifying the grounds for permit denial. The applicant may, within 10 days from the date of such denial, file a written request with the Town Board for a public hearing. The hearing shall be conducted by the Town Board and held within 30 days after filing the request for the hearing, and at which time the permit holder may present evidence bearing upon the question. The Town Board shall then issue a written finding within five days after the date of the public hearing as to whether the permit application was properly denied. If the Town Board determines the permit was unduly denied, the ZEO shall be directed to issue a permit within five days of the date of the written finding. A copy of the permit shall be filed in the office of the Town Clerk.
Permit suspension. A permit may be suspended and a fine levied against the permit holder by the ZEO where it appears that the permit holder has committed an act in violation of this chapter. The ZEO shall give the permit holder a written notice which shall: direct the permit holder to immediately cease operation of the business, specify the grounds for suspension, specify the action that the permit holder must undertake to correct the violation, designate a ten-day time period from the date of said notice for all violations to be corrected to the satisfaction of the ZEO, specify that if the violations are not adequately corrected within the ten-day time period, the permit shall be immediately revoked, and specify the fine to be levied against the permit holder. The permit holder may, upon payment of all fines and within 10 days from the date of such suspension, file a written request with the Town Board for a public hearing. The hearing shall be conducted by the Town Board and held within 30 days after filing the request for the hearing, and at which time the permit holder may present evidence bearing upon the question. The Town Board will then issue a written finding within five days after the date of the public hearing as to whether the permit was properly suspended. If the Town Board determines the permit was unduly suspended, the permit shall be immediately reinstated, monies collected for fines shall be returned, and the adult business shall be allowed to resume operation. If the Town Board determines the permit was properly suspended, the adult business shall continue not to operate, and the permit holder shall have 10 days from the date of receipt of the written finding to correct the violation(s) to the satisfaction of the ZEO. If the violation(s) are adequately corrected, the ZEO shall immediately reinstate the permit and the adult business shall be allowed to resume operation. If the violation(s) are not adequately corrected, the ZEO shall immediately revoke the permit following the procedures described below.
Permit revocation. A permit may be revoked by the ZEO where it appears that the permit holder has not corrected violations pertaining to a previously issued suspension notice, or has committed an act in violation of this chapter. A permit shall be automatically revoked if the permit holder receives more than two separate suspensions. The ZEO shall give the permit holder a written notice directing the permit holder to immediately terminate operation of the business and shall specify the grounds for revocation. The permit holder may, within 10 days from the date of such revocation, file a written request with the Town Board for a public hearing. The hearing shall be conducted by the Town Board and held within 30 days after the filing of the request for the hearing, and at which time the permit holder may present evidence bearing upon the question. The Town Board shall then issue a written finding within five days after the public hearing as to whether the permit was properly revoked. If the Town Board determines the permit was properly revoked, the adult business shall immediately and permanently cease to operate.
§ 270-8A.7 Registration required; fee.
The owner of a building or premises, his agent for the purpose of managing, controlling or collecting rents or any other person managing or controlling a building or premises, any part of which contains an adult use, shall register with the Town Clerk of the Town of Newfane the following information:
The address of the premises.
The name and address of the owner of the premises and the names and addresses of the beneficial owners if the property is in a land trust.
The name of the business or the establishment subject to the provisions of this chapter.
The name(s) and address(es) of the owner, beneficial owner or the major stockholder(s) of the business or establishment subject to the provisions of this chapter.
The date of initiation of the adult use.
The nature of the adult use.
If the premises or building is leased, a copy of said lease.
It is a violation of this chapter for the owner or person in control of any property to establish or operate thereon or to permit any person to establish or operate thereon an adult use without having properly registered said adult use with the Town Clerk.
The registration fee shall be $1,000 annually.
§ 270-8A.8 Display of registration.
The owner or agent of a registered adult use shall display in a conspicuous place on the premises of the adult use a copy of the registration filed with the Town Clerk.
§ 270-8A.9 Penalties for offenses.
A violation of any provision of this article shall constitute an offense, and shall be subject to suspension of the permit and be punishable by a fine of $500 for the first suspension, and $1,000 for a second and final suspension. A permit shall be automatically revoked if the permit holder receives more than two separate suspensions.
If an adult business operates without a permit, or unlawfully operates after a permit was properly suspended or revoked, such violation shall be punishable by a fine of $1,000 and/or by imprisonment for up to 15 days, Each day such a violation continues shall constitute a separate offense.
§ 270-8A.10 Severability.
Should any section or provision of this article be declared to be unconstitutional or invalid by the courts, such decision shall not affect the validity of the balance of this article.
§ 270-8A.11 When effective.
This article shall take effect immediately upon filing with the Secretary of State.