Phelps Town City Zoning Code
ARTICLE VIIIA
Adult Use and Entertainment Establishments
[Added 6-5-2000 by L.L. No. 4-2000]
§ 145-43.1 Title.
This article shall be known as the "Adult Use and Entertainment Establishments Regulation Law" of the Town of Phelps, and shall be added to the comprehensive development regulations of the town.
§ 145-43.2 Legislative intent.
In the development and execution of this article, it is recognized that adult uses and entertainment establishments, because of their very nature, have serious objectionable, operational characteristics when concentrated under certain circumstances and can have a deleterious effect on adjacent areas.
It is the purpose of this article to regulate the creation, opening, commencement and/or operation of adult use and entertainment establishments, as herein defined, in order to achieve the following:
To preserve the character and the quality of life in the Town of Phelps' neighborhoods and business areas.
To control such documented harmful and adverse secondary effects of adult uses on the surrounding areas as: decreased property values; attraction of transients; parking and traffic problems; increased crime; loss of business for surrounding nonadult businesses; and deterioration of neighborhcods.
To restrict minors' access to adult uses.
To maintain the general welfare and safety for the Town of Phelps' residents.
§ 145-43.3 Definitions.
As used in this article, the following terms shall have the meanings indicated:
A public or private establishment, or any part thereof, which presents any of the following entertainment, exhibitions or services: topless and/or bottomless dancers; strippers; topless waitressing, busing or service; topless hair care or massages; service or entertainment where the servers or entertainers wear pasties or G-strings or both; adult arcades, adult bookstores or adult video stores; adult cabarets; adult motels; adult motion-picture theaters; adult theaters; escort agencies; nude model studios and sexual encounter centers. Adult use and entertainment establishments customarily exclude minors by reason of age and are those businesses defined as follows:
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, which are regularly used to show films, motion pictures, videocassettes, slides or other photographic reproductions, 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 depicting or describing specified sexual activities or specified anatomical areas.
ADULT BOOKSTORE or ADULT VIDEO STORE:
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 advertising to 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 picture, videocassettes, or video reproductions, slides, compact disks, computer software or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or
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 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 adult bookstore or adult video store so long as one of its principal business purposes is the offering for sale or rental, for consideration, the specified materials which depict or describe specified sexual activities or specified anatomical areas. For purposes of this definition, "principal business purpose" shall mean 25% or more of any of the following:
The number of different, titles or kinds of such merchandise.
The number of copies or pieces of such merchandise.
The amount of floor space devoted to the sale and/or display of such merchandise.
The amount of advertising which is devoted to such merchandise, either in print or broadcast media.
A nightclub, bar, nonalcoholic or "juice" bar, restaurant or similar commercial establishment which regularly features:
Persons who appear nude or in a state of seminudity; or
Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
Films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description 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, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and which advertises the availability of sexually oriented type of material by means of a sign visible from a public right-of-way, or by means of off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television; or
Offers sleeping rooms for rent on a regular basis for a period of time that is less than 10 hours; or
Allows a tenant or occupant of a room to subrent the room for a period of time that is less than 10 hours.
A commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, 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, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.
A person or business association who or which furnishes, or offers to furnish, or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
Any place where, for any form of consideration or gratuity, massage, alcohol rub or administration of fomentations, electric or magnetic treatments or any other treatment manipulation of the human body occurs as apart of or in connection with specified sexual activities, or where any person providing such treatment, manipulation or service related thereto, exposes his or her specified anatomical areas. The definition of adult use shall not include the practice of massage in any licensed hospital, nor by a licensed physician, surgeon, chiropractor or osteopath nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, nor by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program.
Any place where a person who appears in a state of nudity or displays specified anatomical areas is regularly provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration, other than as a part of a course of instruction offered by an educational institution established pursuant to the laws of the State of New York.
A business or commercial enterprise that, as one of its primary 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 or exposure of specified anatomical areas, or activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or seminude. The definition of adult uses 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.
A person who, for a fee, tip or other consideration, agrees to or offers any of the following: act as a date for another person; for consideration; to privately model lingerie for another person; or to privately perform a striptease for another person.
A person less than 18 years of age.
The appearance of:
An individual, proprietorship, partnership, corporation, association or other legal entity.
To manufacture, issue, sell, give, provide, lend, mail, deliver, transmute, publish, distribute, circulate, disseminate, present, exhibit or advertise or to offer or agree to do the same.
Actual or explicitly simulated flagellation or torture by or upon a person who is nude or clad in undergarments, a mask or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of the one so clothed.
Actual or explicitly simulated acts of masturbation, homosexuality, sexual intercourse or physical contact in an act of apparent sexual stimulation or gratification with a person's clothed or unclothed genitals, pubic area, buttocks, or if such be female, breast.
The condition of human male or female genitals when in a state of sexual stimulation or arousal.
Includes any of the following:
§ 145-43.4 Regulated uses.
Special regulations are necessary to ensure that the adverse effects of these specific uses will not contribute to the blighting or downgrading of the surrounding neighborhood. The primary control or regulation is for the purpose of preventing concentration of these uses.
§ 145-43.5 Allowed zoning districts.
All regulated uses as defined herein may only be created, opened, commenced or operated within the M-1 Zoning District within the Town of Phelps.
§ 145-43.6 Location within allowed zoning districts.
All regulated uses shall be permitted only in the allowed zoning district as set forth in § 145-43.5 hereof, and, within such a district, the site and location shall be regulated as follows:
Residential zoning district boundary: not allowed within 500 feet of the boundary of any residential zoning district in the town.
Residential use: not allowed within 500 feet of the property line of a parcel used for residential purposes in the town.
Place of worship, school day care: not allowed within 500 feet of the property line of a parcel containing a church, synagogue, other place of worship, library, school, day-care facility, park, or playground, within the town.
School bus stop: not allowed within 150 feet of a school bus stop.
Same parcel: not allowed on the same parcel as another adult use and entertainment establishment.
Proximity to another regulated use: not allowed within 1,000 feet of the property line of another regulated use, whether or not such other establishment is located in the town.
The above distances of separation shall be measured from the nearest exterior wall of the portion of the structure containing the regulated use.
§ 145-43.7 Display prohibited.
All regulated uses 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 area or specified sexual activity.
§ 145-43.8 Issuance of permit.
No regulated use shall be established in the Town until the issuance of an operating permit by the Code Enforcement Officer. Such permit shall be issued upon a determination by the Code Enforcement Officer that such regulated use is in conformance with all of the provisions of this article.
In order for the Code Enforcement Officer to make such determination, the applicant shall submit the following minimum information:
A completed application on a form to be provided by the Town and application fee.
A parcel location map.
A drawing, drawn to scale, indicating the portion of the parcel to be developed in the regulated use, as well as all required appurtenances.
A clear and concise description of the proposed use.
A site plan review.
§ 145-43.9 Appeal of Code Enforcement Officer's determination.
Any person aggrieved by the action of the Code Enforcement Officer shall appeal such action to the Town Zoning Board of Appeals in the form and manner prescribed by that Board. Such appeal shall be filed within 30 days of the Code Enforcement Officer's determination being filed with the Town Clerk.
§ 145-43.10 Penalties for offenses.
Any person, firm, corporation or entity who or which shall violate any portion of this article shall be guilty of a violation and, upon conviction thereof, shall be fined in an amount not to exceed $500 for each violation. The continuation of a violation of the provisions of this article shall constitute, for each day the violation is continued, a separate and district offense hereunder.
The owner and/or any occupant and/or any tenant and/or general agent of a building, premises or part thereof where such a violation has been committed or does exist shall be guilty of such an offense.
Any person, firm, corporation or entity violating any of the provisions of this article shall become liable to the Town for any expense or loss or damage occasioned the Town by reason of such violation.
The imposition of penalties herein prescribed shall not preclude the Town or any person from instituting appropriate legal action or proceedings to prevent a violation of this article, or to restrain or enjoin the use or occupancy of a building, premises or part thereof in violation of this article.
§ 145-43.11 Enforcement.
This section gives the Town of Phelps Code Enforcement Officer the authority to enforce this article as well as any local, county or state police.