[HISTORY: Adopted by the Town Board of the Town of Elma 11-6-1996. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 144.
It is recognized that buildings and establishments operated
as adult uses have serious objectionable operational characteristics.
In order to promote the health, safety and general welfare of the
citizens of the Town of Elma, this section is specifically designed
to provide that special regulation necessary on such uses in order
to prevent proliferation in concentration of such uses and ensure
that those effects will not adversely influence the surrounding neighborhoods
of whatever zoning.
As used in this chapter, the following terms shall have the
meanings indicated:
A person, establishment or business, whether retail or wholesale,
having more than a minimal portion off its stock-in-trade, recordings,
books, magazines, periodicals, films, videotapes/cassettes or any
viewing materials for sale or viewing on or off the premises, which
are distinguished or characterized by their emphasis on matter depicting,
describing or relating to specified sexual activities or specified
anatomical areas, or a person, establishment or business containing
a segment or section devoted to the sale or display of such material.
An enclosed or unenclosed building, structure or portion
thereof used for presenting materials distinguished or characterized
by an emphasis on matter depicting, describing or relating to specific
sexual activities or specified anatomical areas for observation by
patrons.
Any person, establishment or business involved in the viewing
or dissemination of material distinguished or characterized by an
emphasis on matter depicting, describing or relating to specific sexual
activity or specified anatomical areas, and including but not limited
to adult arcade, adult motion-picture theater, massage establishment,
private modeling establishment and steam bath establishment.
Any commercial enterprise, association or arrangement for
profit.
The transfer of possession, custody, control or ownership
of or the exhibition or presentation of any performance to a customer,
member of the public or business invitee of any material distinguished
or characterized by an emphasis on matter depicting, describing or
relating to specific sexual activities or specified anatomical areas.
Any establishment having a fixed place of business where
massages, body rubs, sports rubs, hot-oil body rubs or similar services
are administered. This definition shall not be construed to include
a hospital, bona fide medical or health service establishment, nursing
home or medical clinic or the office of a physician, surgeon, chiropractor,
osteopath, duly licensed physical therapist, licensed massage therapist
or barbershops, beauty shop and beauty salons in which massages are
administered only to the scalp, face, neck or shoulders.
Any individual, firm, partnership, corporation, club, association
or legal representative, acting individually or jointly.
Five percent of gross sales for any calendar year.
Any establishment having a fixed place of business which
has as its principal use or as an accessory use, a service of nude
modeling or a service of modeling lingerie or similar clothing to
an individual in a private room.
Includes:
Human genitals in a state of sexual stimulation or arousal.
Acts of human masturbation, sexual intercourse or sodomy.
Fondling or other erotic touching of human genitals, pubic region,
buttocks or female breast.
SADOMASOCHISTIC ABUSEFlagellation or torture by or upon a person who is nude or clad in undergarments or in a sexually revealing or bazaar costume; or the condition of such person be fettered, bound or otherwise physically restrained in an apparent act of sexual stimulation or gratification.
SEXUAL EXCITEMENTThe facial expression, movements, utterances or other responses of a human male or female, whether alone or with others, whether clothed or not, who is in an apparent state of sexual stimulation or arousal or who experiences the physical or sensual reactions of humans engaging in or witnessing sexual conduct.
The conduct described hereinabove in this definition is "sexual
activity," whether or not it is engaged in alone or between members
of the same sex, or between members of the opposite sex or between
human and animal or between human and inanimate objects.
Any establishment which provides steam baths, hot tubs (whirlpools),
saunas and similar facilities. This definition shall not be construed
to include health clubs which have facilities for physical exercise,
such as tennis courts, racquet ball courts or exercise rooms, and
which have hot tubs (whirlpools), steam baths and/or saunas that are
accessory to the health club or those bona fide medical or health
services establishments which have accessory-use steam baths, hot
tubs (whirlpools) or saunas for use in medical therapy.
In addition to other requirements of this chapter and the Code
of the Town of Elma, adult uses shall be permitted subject to the
following restrictions:
A.Â
No adult use shall be allowed within 1,000 feet of another existing
adult use.
B.Â
No adult use shall be located within 1,000 feet of the boundaries
of any district that is zoned for residential use.
C.Â
No such adult use shall be located within 2,000 feet of a preexisting
school or place of worship.
D.Â
No adult use may be located in any zoning district except that which
is zoned as industrial.
E.Â
Only one sign shall be permitted visible from the exterior of a building
occupied by a regulated use, and such sign shall be no larger than
100 square feet, nor shall such sign consist of any material other
than plain lettering. No sign shall have any photographic or artistic
representation other than plain lettering whatsoever thereon.
F.Â
Exposure of materials through public view. No regulated use shall
expose or cause to be exposed to public view, visible from the outside
of the premises, any of the materials regulated by this chapter.
No person, firm, association, club, corporation or other entities
shall lease, rent, maintain, operate, use or allow to be operated
or used any business or establishment any part of which contains an
adult use without first complying with the provisions of this section.
A.Â
In addition to all other required licenses and permits, no form of
adult entertainment shall be permitted to operate until a certificate
of registration is filed with the Town Clerk containing:
(1)Â
The name and address of the person, business or establishment subject
to the provisions of this section. If the business is a partnership
or corporation or a DBA (doing business as), then the names of the
partners, the officers of the corporation, or the holder of the DBA
and their respective addresses shall be filed.
(2)Â
The address of the premises so regulated.
(3)Â
The name and address of the owner(s) of the premises and the name
and address of the beneficial owner(s) if the property is in a land
trust.
(4)Â
The name, business and home phone numbers of all those persons having
substantial connection with the business or establishment, subject
to the provisions of this section.
(5)Â
The exact nature of the adult use.
(6)Â
If the premises or the building in which the business containing
adult use is located is leased or rented, a copy of said lease.
(7)Â
If the establishment is a massage parlor or deals in any way with
massage, then the application shall also contain the New York State
certificate as a masseur or masseuse. This is a continuing requirement
upon the employment of any new employees engaged in personal massage,
and a certificate for any such new employees must be on file at the
Town Clerk's office within five business days of their employment.
B.Â
Application for said permit shall be made through the Building Inspector's
office on forms provided for that purpose and shall be accompanied
by the fee determined by the Town Board. The Building Inspector shall
examine said application and shall examine said building location
and use for compliance with all New York State and local laws, including
this chapter. Such inspections shall also include the usual inspection
for compliance with the New York State Uniform Fire Prevention and
Building Code and other local ordinances, resolutions, statutes and
regulations. Upon completion of his initial inspection and examination,
the Building Inspector shall refer the matter with any recommendations
he may have as to safety, health conditions and security, to the Planning
Board with notification to the Town Board. The Planning Board shall
review the application for the same matters and shall provide a written
recommendation to the Town Board within 60 days provided all information
requested by the Planning Board of the applicant is received within
45 days. The Town board shall thereupon review the application with
all supporting documentation and recommendations, if any, and shall
accept the application, reject the application or accept the application
with modifications. At any level of this process, any Town department
may apply for assistance from outside agencies at the expense of the
applicant, provided that the applicant is notified of the department's
intention to request such assistance, the approximate cost of such
assistance and the estimated time before such assistance can be provided.
The applicant shall then affirmatively authorize said department to
go forward with such request for outside assistance. Failure on the
part of the applicant to provide said authorization, in writing, shall
be deemed a withdrawal of the application if not provided within 10
days of the time that the Town provides the information necessary
as to the assistance.
C.Â
If there occurs any change in the information required for the certificate
of registration, the Town Clerk shall be notified of any changes and
a new, amended certificate shall be filed within 10 days of such change.
D.Â
The processing fee for each certificate of registration or amendment
thereto shall be as established from time to time by the Town Board.
E.Â
Certificates of registration shall, unless revoked, be valid from
one year from the date of issuance; and a certificate of amendment
shall be considered to terminate when the certificate which it amends
terminates.
F.Â
All fees are nonrefundable.
G.Â
No certificate of registration or amendment issued under the provisions
of this section shall be transferrable or assignable to any other
person, business or establishment without the written permission of
the Town Board, nor shall any certificate of registration or amendment
be transferable for use at any other premises, building or location
other than that so stated and set forth in the certificate of registration
or amendment.
H.Â
All certificates of registration must be prominently and conspicuously
displayed on the premises, building or location for which it is issued
by the owner, manager, or agent of the adult use.
I.Â
Any intentional or knowingly made false statement or any statement
which a registered business or applicant should reasonably have known
to be false, which is provided in the certificate of registration
or any document or information supplied therewith, shall be grounds
for rejection, suspension or revocation of the certificate.
J.Â
Periodic inspections by authorized police, agencies or departments
within the Town shall be made. Such inspections shall be reasonable
as to the time and the manner of the same.
This chapter shall apply to any person, firm, corporation, club,
association or other entity which actually engages in the conduct
of a regulated use under this chapter and shall further and equally
apply to the owner of any building, structure or premises upon which
regulated use is conducted. Any violation of this chapter shall subject
both the person, firm, club, association, corporation or entity conducting
such regulated use and the owner and tenant of the premises upon which
such regulated use is conducted to the penalties provided herein.
A.Â
The Town Board reserves the power to revoke without notice any certificate
of registration or amendment issued under the provisions of this chapter
at any time in cases in which such certificates were procured by false
representation of facts or for the violation of or failure to comply
with any provision of this chapter by any registrant, his servant,
agent or employees. In case of such revocation, no portion of any
fee for such certificate shall be refunded.
B.Â
After any revocation, the registrant, upon request, shall be entitled
to a hearing before the Town Board not less than 10 days after such
revocation nor more than 30 days afterwards. All such requests must
be in writing and given to the Town Clerk, who will set a date for
the hearing, giving the registrant 10 days' notice thereof.
A.Â
Any person violating any of the provisions of this chapter shall,
upon conviction thereof, be guilty of a violation pursuant to the
Penal Law of the State of New York, punishable by a fine not exceeding
$250 or by imprisonment for a term not exceeding 15 days, or by both
such fine or imprisonment.
B.Â
The continuation of an offense under this chapter shall constitute,
for each day the offense continues, a separate and distinct violation
herein.
