[HISTORY: Adopted by the Village Board of
the Village of Port Chester 9-2-2008 by L.L. No. 9-2008. Amendments noted where
applicable.]
A.
Purpose. It is the purpose of this chapter to regulate
adult entertainment businesses in order to promote the health, safety,
and general welfare of the citizens of the Village and to establish
reasonable and uniform regulations to prevent the deleterious secondary
effects of adult entertainment businesses within the Village. The
provisions of this chapter have neither the purpose nor effect of
imposing a limitation or restriction on the content or reasonable
access to any communicative materials, including sexually oriented
materials. Similarly, it is neither the intent nor effect of this
chapter 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
chapter to condone or legitimize the distribution of obscene material.
B.
Findings and rationale. Based on evidence of the adverse
secondary effects of adult uses presented in hearings and in reports
made available to the Village Board of Trustees; and on findings,
interpretations, and narrowing constructions incorporated in the cases
of City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004);
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City
of Erie v. Pap's A.M., 529 U.S. 277 (2000); City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres,
427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991);
California v. LaRue, 409 U.S. 109 (1972); N.Y. State Liquor Authority
v. Bellanca, 452 U.S. 714 (1981); and Charette v. Town of Oyster Bay,
2 Fed. Appx. 112 (2d Cir. 2001); Beal v. Stern, 184 F.3d 117 (2d Cir.
1999); Buzzetti v. City of New York, 140 F.3d 134 (2d Cir. 1998);
Marty's Adult World v. Town of Enfield, 20 F.3d 512 (2d Cir. 1994);
Hickerson v. City of New York, 146 F.3d 99 (2d Cir. 1998); Casanova
Entertainment Group, Inc. v. City of New Rochelle, 165 Fed. Appx.
72 (2d Cir. 2006); United States v. Kinzler, 55 F.3d 70 (2d Cir. 1995);
Gold Diggers, LLC v. Town of Berlin, 469 F. Supp. 2d 43 (D. Conn.
2007); Centerfolds, Inc. v. Town of Berlin, 352 F. Supp. 2d 183 (D.
Conn. 2004); Derusso v. City of Albany, 205 F. Supp. 2d 16 (N.D.N.Y.
2002); World Wide Video of Washington, Inc. v. City of Spokane, 368
F.3d 1186 (9th Cir. 2004); Ben's Bar, Inc. v. Village of Somerset,
316 F.3d 702 (7th Cir. 2003); Daytona Grand, Inc. v. City of Daytona
Beach, 490 F.3d 860 (11th Cir. 2007); Williams v. Morgan, 478 F.3d
1316 (11th Cir. 2007); H&A Land Corp. v. City of Kennedale, 480
F.3d 336 (5th Cir. 2007); Illinois One News, Inc. v. City of Marshall,
477 F.3d 461 (7th Cir. 2007); G.M. Enterprises, Inc. v. Town of St.
Joseph, 350 F.3d 631 (7th Cir. 2003); Sensations, Inc. v. City of
Grand Rapids, 526 F.3d 291 (6th Cir. 2008); Richland Bookmart, Inc.
v. Nichols, 137 F.3d 435 (6th Cir. 1998); Spokane Arcade, Inc. v.
City of Spokane, 75 F.3d 663 (9th Cir. 1996); Gammoh v. City of La
Habra, 395 F.3d 1114 (9th Cir. 2005); People ex rel. Deters v. The
Lion's Den, Inc., Case No. 04-CH-26, Modified Permanent Injunction
Order (Ill. Fourth Judicial Circuit, Effingham County, July 13, 2005);
Reliable Consultants, Inc. v. City of Kennedale, No. 4:05-CV-166-A,
Findings of Fact and Conclusions of Law (N.D. Tex. May 26, 2005);
and based upon reports concerning secondary effects occurring in and
around adult entertainment businesses, including, but not limited
to, Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove,
California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona -
1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, California
- 1977; Whittier, California - 1978; Spokane, Washington - 2001; St.
Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City,
Oklahoma - 1986; Dallas, Texas - 1997; Ft. Worth, Texas - 2004; Kennedale,
Texas -2005; Greensboro, North Carolina - 2003; Amarillo, Texas -
1977; McCleary Report - 2006; New York, New York Times Square - 1994;
and the Report of the Attorney General's Working Group On The Regulation
Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota),
the Board of Trustees finds:
(1)
Adult entertainment businesses, as a category of commercial
uses, are associated with a wide variety of adverse secondary effects,
including, but not limited to, personal and property crimes, prostitution,
potential spread of disease, lewdness, public indecency, obscenity,
illicit drug use and drug trafficking, negative impacts on surrounding
properties, urban blight, litter, and sexual assault and exploitation.
(2)
Each of the foregoing negative secondary effects constitutes
a harm which the Village has a substantial government interest in
preventing and/or abating. This substantial government interest in
preventing secondary effects, which is the Village's rationale for
this chapter, exists independent of any comparative analysis between
sexually oriented and nonadult entertainment businesses. Additionally,
the Village's interest in regulating adult entertainment businesses
extends to preventing future secondary effects of either current or
future adult entertainment businesses that may locate in the Village.
The Village finds that the cases and documentation relied on in this
chapter are reasonably believed to be relevant to said secondary effects.
C.
The Village hereby adopts and incorporates herein
its stated findings and legislative record related to the adverse
secondary effects of adult entertainment businesses, including the
judicial opinions and reports related to such secondary effects.
For purposes of this chapter, the words and
phrases defined in this section hereunder shall have the meanings
therein respectively ascribed to them unless a different meaning is
clearly indicated by the context.
A commercial establishment which, as one of its principal
business activities, offers for sale or rental for any form of consideration
any one or more of the following: books, magazines, periodicals or
other printed matter, or photographs, films, motion pictures, video
cassettes, compact discs, digital video discs, slides, or other visual
representations which are characterized by their emphasis upon the
display of specified sexual activities or specified anatomical areas.
A "principal business activity" exists where the commercial establishment:
Has a substantial portion of its displayed merchandise
which consists of said items; or
Has a substantial portion of the wholesale value
of its displayed merchandise which consists of said items; or
Has a substantial portion of the retail value
(defined as the price charged to customers) of its displayed merchandise
which consists of said items; or
Derives a substantial portion of its revenues
from the sale or rental, for any form of consideration of said items;
or
Maintains a substantial portion of its interior
business space for the display, sale, and/or rental of said items
(aisles and walkways used to access said items shall be included in
interior business space maintained for the display, sale, or rental
of said items); or
Maintains at least 500 square feet of its interior
business space for the display, sale, and/or rental of said items
(aisles and walkways used to access said items shall be included in
interior business space maintained for the display, sale, or rental
of said items) and limits access to the premises to adults only; or
Offers for sale or rental at least 2,000 of
the foregoing items and limits access to the premises to adults only;
or
Regularly features said items and regularly
advertises itself or holds itself out as an establishment that caters
to adult sexual interests by using "adult," "XXX," "sex," "erotic,"
or substantially similar language; or
Maintains an "adult arcade," which means 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 characterized by their emphasis upon matter exhibiting
specified sexual activities or specified anatomical areas.
A nightclub, bar, juice bar, restaurant, bottle club, or
similar commercial establishment which regularly features persons
who appear seminude.
An adult bookstore or adult video store, an adult cabaret,
an adult motion-picture theater, a seminude model studio, or a sexual
device shop.
A commercial establishment where films, motion pictures,
videocassettes, slides, or similar photographic reproductions which
are characterized by their emphasis upon the display of specified
sexual activities or specified anatomical areas are regularly shown
to more than five persons for any form of consideration.
Describing the essential character or quality of an item.
As applied in this chapter, no business shall be classified as an
adult entertainment business by virtue of showing, selling, or renting
materials rated NC-17 or R by the Motion Picture Association of America.
The Chief of the Port Chester Police Department.
These words describe and pertain to any person who performs
any service on the premises of an adult entertainment business, on
a full-time, part-time, or contract basis, regardless of whether the
person is denominated an employee, independent contractor, agent,
or otherwise. 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. Employee does include any security guard
employed by an adult entertainment business or whose services are
performed on the premises of an adult entertainment business.
Any of the following:
The opening or commencement of any adult entertainment
business as a new business;
The conversion of an existing business, whether
or not an adult entertainment business, to any adult entertainment
business; or
The addition of any adult entertainment business
to any other existing adult entertainment business.
An attorney, not employed by the Village other than as a
hearing officer, who is licensed to practice law in the State of New
York and is retained to serve as an independent tribunal to conduct
hearings under this chapter.
The authority to manage or operate the adult
entertainment business or control the operation, management or policies
of the adult entertainment business or legal entity which operates
the adult entertainment business;
Ownership of a financial interest of 30% or
more of a business or of any class of voting securities of a business;
Holding an office (e.g., president, vice president,
secretary, treasurer, managing member, managing director, etc.) in
a legal entity which operates the adult entertainment business.
The floor area inside an adult entertainment business that
is visible or accessible to patrons for any reason, excluding restrooms.
A person in whose name a license to operate an adult entertainment
business has been issued, as well as the individual or individuals
listed as an applicant on the application for an adult entertainment
business license. In the case of an employee, it shall mean the person
in whose name the adult entertainment business employee license has
been issued.
Any person on the premises of an adult entertainment business
who causes the business to function or who puts or keeps in operation
the business or who is authorized to manage the business or exercise
overall operational control of the business premises. A person may
be found to be operating or causing to be operated an adult entertainment
business regardless of whether that person is an owner or part owner
of the business or a licensee under this chapter.
The showing of the human male or female genitals, pubic area,
vulva, anus, anal cleft or cleavage with less than a fully opaque
covering, or the showing of the female breast with less than a fully
opaque covering of any part of the nipple and areola.
An individual, proprietorship, partnership, corporation,
association, or other legal entity.
The real property upon which the adult entertainment business
is located, and all appurtenances thereto and buildings thereon, including,
but not limited to, the adult entertainment business, the grounds,
private walkways, and parking lots and/or parking garages adjacent
thereto, under the ownership, control, or supervision of the licensee,
as described in the application for an adult entertainment business
license.
The consistent and repeated doing of an act on an ongoing
basis.
A person who has a valid registration card to perform security
guard functions in the State of New York issued by the New York State
Department of State, Division of Licensing Services which has not
expired or been revoked or suspended.
The showing of the female breast below a horizontal line
across the top of the areola and extending across the width of the
breast at that point, or the showing of the male or female buttocks.
This definition shall include the lower portion of the human female
breast, but shall not include any portion of the cleavage of the human
female breasts exhibited by a bikini, dress, blouse, shirt, leotard,
or similar wearing apparel provided the areola is not exposed in whole
or in part.
A place where persons regularly appear in a state of seminudity
for money or any form of consideration in order to be observed, sketched,
drawn, painted, sculptured, photographed, or similarly depicted by
other persons. This definition does not apply to any place where persons
appearing in a state of seminudity did so in a class operated:
By a college, junior college, or university
supported entirely or partly by taxation;
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
Any three-dimensional object designed for stimulation of
the male or female human genitals, anus, buttocks, female breast,
or for sadomasochistic use or abuse of oneself or others and shall
include devices commonly known as dildos, vibrators, penis pumps,
cock rings, anal beads, butt plugs, nipple clamps, and physical representations
of the human genital organs. Nothing in this definition shall be construed
to include devices primarily intended for protection against sexually
transmitted diseases or for preventing pregnancy.
A commercial establishment that regularly features sexual
devices. This definition shall not be construed to include any pharmacy,
drug store, medical clinic, any establishment primarily dedicated
to providing medical or healthcare products or services, or any establishment
that does not limit access to its premises or a portion of its premises
to adults only.
This term means and includes:
Any of the following offenses, for which less than five years
have elapsed since the date of conviction of a felony or the date
of release from confinement for the conviction of a felony, whichever
is the later date, or for which less than two years have elapsed since
the date of conviction of a misdemeanor or the date of release from
confinement for the conviction of a misdemeanor, whichever is the
later date:
An offense within §§ 120.00 through
and including 120.12 of the Penal Law relating to assault;
An offense within Article 200 of the Penal Law
relating to bribery involving public servants;
An offense within Article 210 of the Penal Law
relating to perjury;
An offense within Article 220 of the Penal Law
relating to controlled substances;
An offense within Article 221 of the Penal Law
relating to marihuana;
An offense within Article 225 of the Penal Law
relating to gambling;
An offense within Article 230 of the Penal Law
relating to prostitution;
An offense within Article 245 of the Penal Law
relating to offenses against public sensibilities;
An offense within §§ 260.20 and
260.21 of the Penal Law relating to unlawfully dealing with a child;
An offense within Article 460 of the Penal Law
relating to enterprise corruption;
An offense within Article 470 of the Penal Law
relating to money laundering;
Any other crime committed in violation of the
laws of any other jurisdiction which if committed in this state would
constitute one of the foregoing offenses;
Any offense which is a misdemeanor or felony
involving the adult entertainment business premises.
Any of the following:
At least 35% of the item(s) so modified.
Any of the following:
The sale, lease, or sublease of the business;
The transfer of securities which constitute
an influential 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.
The room, booth, or area where a patron of an adult entertainment
business would ordinarily be positioned while watching a film, videocassette,
digital video disc, or other video reproduction.
The Village of Port Chester, New York.
A.
Business license. It shall be unlawful for any person
to operate an adult entertainment business in the Village without
a valid adult entertainment business license.
B.
Employee license. It shall be unlawful for any person
to be an employee, as defined in this chapter, of an adult entertainment
business in the Village without a valid adult entertainment business
employee license, except that a person who is a licensee under a valid
adult entertainment business license shall not be required to also
obtain an adult entertainment business employee license.
C.
Application. An applicant for an adult entertainment business license or an adult entertainment business employee license shall file in person at the office of the Chief of Police a complete application made on a form provided by the Village Clerk. An adult entertainment business may designate an individual with an influential interest in the business to file its application for an adult entertainment business license in person on behalf of the business. The application shall be signed, as required by Subsection D herein, and shall be notarized. An application shall be considered complete when it contains, for each person required to sign the application, the information and/or items required in this Subsection C accompanied by the appropriate licensing fee:
(1)
The applicant's full legal name and any other names
used by the applicant in the preceding five years.
(2)
Current business address or another mailing address
for the applicant.
(3)
Written proof of age in the form of a driver's license
or a copy of a birth certificate accompanied by a picture identification
document issued by a governmental agency.
(4)
A set of fingerprint impressions of the fingers and
thumbs on both hands taken by the Police Department of the Village.
The Police Department shall provide this service, upon payment of
the nominal fee for such service, on business days between 9:00 a.m.
and 5:00 p.m. upon request. The Police Department is authorized to
forward the said fingerprints to the New York State Division of Criminal
Justice Services for a criminal convictions investigation. The Police
Department shall secure from the applicant the required fee for said
investigation in the form of a check or money order made payable to
the New York State Division of Criminal Justice Services and shall
forward said payment together with the fingerprints to the said agency.
The information secured as a result of said investigation shall be
reviewed by a member of the Police Department designated by the Chief
of Police who shall thereafter make his or her report to the Chief
of Police.
(5)
If the application is for an adult entertainment business
license, the business name, street address, legal description, mailing
address, and phone number of the adult entertainment business, as
well as the name of the legal entity(ies) intending to operate the
adult entertainment business and the doing business as name of the
adult entertainment business.
(6)
If the application is for an adult entertainment business
license, the name and business address of the statutory agent or other
agent authorized to receive service of process for the operator of
the adult entertainment business.
(7)
A statement of whether an applicant has been convicted
of or has pled guilty or nolo contendere to a specified criminal activity,
as defined in this chapter and, if so, each specified criminal activity
involved, including the date, place, and jurisdiction of each as well
as the dates of conviction and release from confinement, where applicable.
If an applicant has been convicted of or has pled nolo contendere
to a specified criminal activity as defined in this chapter, the applicant
shall include a statement of whether the conviction or plea is subject
to a certificate of relief from disability or a certificate of good
conduct pursuant to New York State Correction Law §§ 701
through 703-b.
(8)
A statement of whether any cabaret, dance hall, nightclub,
or adult entertainment business in which an applicant has had an influential
interest has in the previous five years (and at a time during which
the applicant had the influential interest):
(9)
A statement whether an applicant may perform security
guard functions on the adult entertainment business premises and,
if so, a legible copy of the applicant's valid registration card to
perform security guard functions issued by the New York State Department
of State, Division of Licensing Services which has not expired or
been revoked or suspended.
(10)
An application for an adult entertainment business
license shall be accompanied by a legal description of the property
where the business is located and a schematic, certified as accurate
by a professional engineer or architect, showing the configuration
of the premises, including a statement of total floor space occupied
by the business. The schematic 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. Applicants who are required
to comply with the stage, booth, and/or room configuration requirements
of this chapter shall submit a diagram indicating that the setup and
configuration of the premises meets the requirements of the applicable
regulations.
(11)
An application for an adult entertainment business
license shall be accompanied by written documentation that the adult
entertainment business has a current comprehensive general liability
insurance policy, issued by a company with an AM Best rating of A-
or higher, with coverage equal to or in excess of $2,000,000, per
occurrence and in the aggregate, for bodily injury, personal injury,
and property damage.
(12)
An application for an adult entertainment business
license shall set forth the name and phone number(s) of an individual
who shall provide Village officials access to the floor area of the
adult entertainment business premises during business hours for the
limited purpose of verifying compliance with the specific standards
set forth in this chapter.
D.
Signature. A person who seeks an adult entertainment
business employee license under this section shall sign the application
for a license. If a person who seeks an adult entertainment business
license under this section is an individual, he shall sign the application
for a license as applicant. If a person who seeks an adult entertainment
business license is other than an individual, each person with an
influential interest in the adult entertainment business or in a legal
entity that controls the adult entertainment business shall sign the
application for a license as applicant. Each applicant must be qualified
under this chapter and each applicant shall be considered a licensee
if a license is granted.
E.
The information provided pursuant to this section
shall be supplemented, in writing, to the Chief of Police within 10
working days of a change of circumstances which would render the information
originally submitted false or incomplete. The information provided
by an applicant in connection with an application for a license under
this chapter shall be maintained by the Chief of Police on a confidential
basis, and such information may be disclosed only as may be required
and only to the extent required by court order.
A.
An applicant may obtain an annual adult entertainment business license or an annual adult entertainment business employee license, as the case may be, which expires 12 months from the date of issuance. An annual license may be renewed only by making application and payment of a fee as set forth in Village Code § 175-4.
B.
Application for renewal of an annual license should
be made no more than 60 days prior to the expiration of the current
annual license, and when made less than 30 days before the expiration
date, the expiration of the current license will not be affected.
C.
Business license. Upon the filing of a complete application
for an adult entertainment business license, the Chief of Police shall
immediately issue a temporary license to the applicant if the complete
application is from a preexisting adult entertainment business that
is lawfully operating in the Village and the complete application,
on its face, indicates that the applicant is entitled to an annual
adult entertainment business license. The temporary license shall
expire upon the final decision of the Village to deny or grant an
annual license. Within 20 days of the filing of a complete adult entertainment
business license application, the Chief of Police shall either issue
a license to the applicant or issue a written notice of intent to
deny a license to the applicant. The Chief of Police shall issue a
license unless:
(1)
An applicant is less than 18 years of age.
(2)
An applicant has failed to provide information required
by this chapter for issuance of a license or has falsely answered
a question or request for information on the application form.
(3)
The applicant does not possess a current certificate
of occupancy to operate the adult entertainment business.
(4)
The license application fee required by this chapter
has not been paid.
(5)
An applicant has been convicted of or pled guilty
or nolo contendere to a specified criminal activity, as defined in
this chapter, provided that a specified criminal activity that is
subject to a certificate of relief from disability or a certificate
of good conduct pursuant to New York State Correction Law §§ 701
through 703-b shall not disqualify an applicant from receiving an
adult entertainment business license, nor shall an applicant be denied
an adult entertainment business license if such a denial would violate
New York State Correction Law §§ 751 through 753.
(6)
An applicant has suffered or permitted the establishment,
through improper or inadequate maintenance and supervision, to be
used for the commission of any specified criminal activity as defined
in this chapter.
(7)
Within the prior twenty-four-month period, two or
more of any of the following have occurred on the premises of the
establishment due to the knowing, reckless, or negligent conduct of
an applicant:
(a)
Occupancy limits applicable to the establishment
have been exceeded.
(b)
Exit doors have been locked while the premises
are occupied.
(c)
Exits and/or aisles have been obstructed in
violation of the fire code or building code.
(d)
Centralized fire alarm system or fire hood suppression
system, as required by the NYS Building and Fire Code, have been inoperable
or lacking from required locations.
(e)
Fights, assaults, or other disturbances of a
similar nature have occurred on the premises.
(f)
Violations of the Alcoholic Beverage Control
laws of the State of New York.
(8)
Within the prior sixty-month period, any of the following
have occurred due to the knowing, reckless, or negligent conduct of
an applicant:
(a)
A fire on the adult entertainment business premises
resulting in death or serious physical injury, as defined in Penal
Law § 10.00, Subdivision 10, where one or more Fire Code
violations existed on the premises at the time of the fire.
(b)
Death or serious physical injury, as defined
in Penal Law § 10.00, Subdivision 10, arising out of an
incident on the adult entertainment business premises.
(c)
A riot, as defined in Penal Law § 240.05,
taking place upon the premises or arising out of an incident on the
premises and taking place, in whole or in part, within 200 feet of
the adult entertainment business premises.
(9)
Any cabaret, dance hall, nightclub, or adult entertainment
business in which an applicant has had an influential interest has
in the previous five years (and at a time during which the applicant
had the influential interest):
(10)
The adult entertainment business is not covered
by a current liability insurance policy that satisfies the requirements
set forth in this chapter.
(11)
The adult entertainment business is not in compliance
with the minimum interior lighting requirements or the interior configuration
requirements of this chapter.
(13)
The adult entertainment business is in violation
of the New York State Uniform Fire Prevention and Building Code.
D.
Employee license. Upon the filing of a complete application
for an adult entertainment business employee license, the Chief of
Police shall immediately issue a temporary license to the applicant
if the applicant seeks licensure to work in a licensed adult entertainment
business and the complete application, on its face, indicates that
the applicant is entitled to an annual adult entertainment business
employee license. The temporary license shall expire upon the final
decision of the Village to deny or grant an annual license. Within
20 days of the filing of a complete adult entertainment business employee
license application, the Chief of Police shall either issue a license
to the applicant or issue a written notice of intent to deny a license
to the applicant. The Chief of Police shall issue a license unless:
(1)
The applicant is less than 18 years of age.
(2)
The applicant has failed to provide information as
required by this chapter for issuance of a license or has falsely
answered a question or request for information on the application
form.
(3)
The license application fee required by this chapter
has not been paid.
(4)
Any cabaret, dance hall, nightclub, or adult entertainment
business in which the applicant has had an influential interest has
in the previous five years (and at a time during which the applicant
had the influential interest):
(5)
The applicant has been convicted of or pled guilty
or nolo contendere to a specified criminal activity, as defined in
this chapter, provided that a specified criminal activity that is
subject to a certificate of relief from disability or a certificate
of good conduct pursuant to New York State Correction Law §§ 701
through 703-b shall not disqualify an applicant from receiving an
adult entertainment business employee license, nor shall an applicant
be denied an adult entertainment business employee license if such
a denial would violate New York State Correction Law §§ 751
through 753.
E.
The Chief of Police shall not issue or renew a license
if an applicant has not paid any fine, penalty or judgment duly imposed
in connection with or arising from the use, occupation, or operation
of a cabaret, dance hall, nightclub, or adult entertainment business
or the applicant's employment at a cabaret, dance hall, nightclub,
or adult entertainment business.
F.
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 the licensee(s), the expiration date and, if
the license is for an adult entertainment business, the address of
the adult entertainment business. The adult entertainment business
license shall be posted in a conspicuous place at or near the entrance
to the adult entertainment business so that it may be read at any
time that the business is occupied by patrons or is open to the public.
An adult entertainment 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.
A.
The application fee for each annual adult entertainment business license is set forth in Village Code § 175-4.
B.
The application fee for each adult entertainment business employee license is set forth in Village Code § 175-4.
C.
The applicable license fee shall be paid upon filing
of an application for a license herein prescribed, in order to defray
the cost of administering and enforcing this chapter, and shall not
be refundable.
Each adult entertainment business license issued
under this chapter shall be posted and prominently displayed at the
main entrance of the establishment.
Adult entertainment business licensees shall
provide a manager or other responsible party on the premises when
the adult entertainment business is occupied by patrons or is open
to the public.
No license issued under the provisions of this
chapter shall be transferred or assigned to any person, or used by
any person, other than the licensee to whom it was issued. No adult
entertainment business license shall be used on any location other
than the location stated in such adult entertainment business license.
Adult entertainment businesses and adult entertainment
business employees shall permit employees of the Village to inspect,
from time to time on an occasional basis, the portions of the adult
entertainment business premises where patrons are permitted, for the
purpose of ensuring compliance with the specific regulations of this
chapter, during those times when the adult entertainment business
is occupied by patrons or is open to the public. This section shall
be narrowly construed by the Village to authorize only reasonable
inspections of the licensed premises pursuant to this chapter.
A.
The Chief of Police shall issue a written notice of
intent to suspend an adult entertainment business license for a period
not to exceed 30 days if the adult entertainment business licensee
has knowingly violated this chapter or has knowingly allowed an employee
or any other person to violate this chapter.
B.
The Chief of Police shall issue a written notice of
intent to suspend an adult entertainment business employee license
for a period not to exceed 30 days if the employee licensee has knowingly
violated this chapter.
A.
The Chief of Police shall issue a written notice of
intent to revoke an adult entertainment business license or an adult
entertainment business employee license, as applicable, if the licensee
knowingly violates this chapter or has knowingly allowed an employee
or any other person to violate this chapter and a suspension of the
licensee's license has become effective within the previous twelve-month
period.
B.
The Chief of Police shall issue a written notice of
intent to revoke an adult entertainment business license or an adult
entertainment business employee license, as applicable, if:
(1)
A licensee has knowingly given false information in
the application for the adult entertainment business license or the
adult entertainment business employee license.
(2)
A licensee has knowingly or recklessly engaged in
or allowed possession, use, or sale of controlled substances on the
premises of the adult entertainment business;
(3)
A licensee has knowingly or recklessly engaged in
or allowed prostitution on the premises of the adult entertainment
business;
(4)
A licensee knowingly or recklessly operated the adult
entertainment business during a period of time when the license was
suspended;
(5)
A licensee is convicted of any specified criminal
activity as defined in this chapter;
(6)
A licensee has knowingly or recklessly engaged in
or allowed any specified sexual activity or specified criminal activity
to occur in or on the premises of the adult entertainment business;
(7)
A licensee has knowingly or recklessly allowed a person
under the age of 18 years to consume alcohol or appear in a state
of seminudity or nudity on the premises of the adult entertainment
business; or
C.
The fact that any relevant conviction is being appealed
shall have no effect on the revocation of the license, provided that
if any conviction which serves as a basis of a license revocation
is overturned or reversed on appeal, that conviction shall be treated
as null and of no effect for revocation purposes.
D.
When, after the notice and hearing procedure described
in this chapter, the Village revokes a license, the revocation shall
continue for one year and the licensee shall not be issued an adult
entertainment business license or adult entertainment business employee
license for one year from the date revocation becomes effective.
A.
When the Chief of Police issues a written notice of intent to deny, suspend, or revoke a license, the Chief of Police shall immediately send such notice, which shall include the specific grounds under this chapter for such action, to the applicant or licensee (respondent) by personal delivery or certified mail. The notice shall be directed to the most current business address or other mailing address on file with the Chief of Police for the respondent. The notice shall also set forth the following: the respondent shall have 10 days after the delivery of the written notice to submit, at the office of the Chief of Police, a written request for a hearing. If the respondent does not request a hearing within said 10 days, the Chief of Police's written notice shall become a final denial, suspension, or revocation, as the case may be, on the 30th day after it is issued, and shall be subject to the provisions of Subsection B of this section. If the respondent does make a written request for a hearing within said 10 days, then the Chief of Police shall, within 10 days after the submission of the request, send a notice to the respondent indicating the date, time, and place of the hearing. The hearing shall be conducted not less than 10 days nor more than 20 days after the date that the hearing notice is issued. The County shall provide for the hearing to be transcribed.
(1)
At the hearing, the respondent shall have the opportunity
to present all of respondent's arguments and to be represented by
counsel, present evidence and witnesses on his or her behalf, and
cross-examine any of the Chief of Police's witnesses. The Chief of
Police shall also be represented by counsel and shall bear the burden
of proving the grounds for denying, suspending, or revoking the license.
The hearing shall take no longer than two days, unless extended at
the request of the respondent to meet the requirements of due process
and proper administration of justice. The hearing officer shall issue
a final written decision, including specific reasons for the decision
pursuant to this chapter, to the respondent within five days after
the hearing.
(2)
If the decision is to deny, suspend, or revoke the
license, the decision shall not become effective until the 30th day
after it is rendered, and the decision shall include a statement advising
the respondent of the right to appeal such decision to a court of
competent jurisdiction. If the hearing officer's decision finds that
no grounds exist for denial, suspension, or revocation of the license,
the hearing officer shall, contemporaneously with the issuance of
the decision, order the Chief of Police to immediately withdraw the
intent to deny, suspend, or revoke the license and to notify the respondent,
in writing, by certified mail of such action. If the respondent is
not yet licensed, the Chief of Police shall contemporaneously therewith
issue the license to the applicant.
B.
If any court action challenging a licensing decision
is initiated, the Village shall prepare and transmit to the court
a transcript of the hearing within 30 days after receiving written
notice of the filing of the court action. The Village shall consent
to expedited briefing and/or disposition of the action, shall comply
with any expedited schedule set by the court, and shall facilitate
prompt judicial review of the proceedings. The following shall apply
to any adult entertainment business that is lawfully operating as
an adult entertainment business, or any adult entertainment business
employee that is lawfully employed as an adult entertainment business
employee, on the date on which the complete business or employee application,
as applicable, is filed with the Chief of Police. Upon the filing
of any court action to appeal, challenge, restrain, or otherwise enjoin
the Village's enforcement of any denial, suspension, or revocation
of a temporary license or annual license, the Chief of Police shall
immediately issue the respondent a provisional license. The provisional
license shall allow the respondent to continue operation of the adult
entertainment business or to continue employment as an adult entertainment
business employee and will expire upon the court's entry of a judgment
on the respondent's appeal or other action to restrain or otherwise
enjoin the Village's enforcement.
A.
Menu. Upon request of a patron of an adult entertainment
business that sells any food or drink, such patron shall be furnished
with a clearly printed menu or other written list that itemizes the
prices charged for food and drink sold before he or she is served,
or, in the alternative, one or more signs reciting such itemized prices
may be placed in conspicuous locations within the premises so as to
be readily observable to all patrons.
B.
Liability insurance. An adult entertainment business
shall maintain a liability insurance policy with coverage equal to
or in excess of $500,000 per occurrence and that obligates the insurer
to notify the Village Clerk if the policy is canceled or if the insured
fails to renew 30 days prior to the expiration of the policy.
C.
Security guards.
(1)
An adult entertainment business shall maintain at
least one security guard on premises at all times when the business
is occupied by patrons or is open to the public. An adult entertainment
business shall maintain at least two security guards on premises when
75 to 149 patrons are present at the same time. An adult entertainment
business shall maintain at least one additional security guard for
every additional set of 75 patrons (or portion thereof) on the premises
at the same time. An adult entertainment business shall not admit
any additional patron to the premises if doing so would cause the
business to violate this requirement. The following chart demonstrates
the application of this requirement:
|
Number of Patrons Present
|
Minimum Number of Security Guards Required
| |
|
0 to 74
|
1
| |
|
75 to 149
|
2
| |
|
150 to 224
|
3
| |
|
225 to 299
|
4
| |
|
300 to 374
|
5
| |
|
375 to 449
|
6
| |
|
450 to 524
|
7
| |
|
525 to 599
|
8
| |
|
For every 1 to 75 additional patrons
|
At least 1 additional security guard
|
(2)
When employing or retaining the services of a security
guard, an adult entertainment business shall comply with the provisions
of Article 7-A of the General Business Law. An adult entertainment
business shall retain on the premises a copy of the current registration
card issued pursuant to Article 7-A of the General Business Law to
each security guard on duty at such establishment and shall make the
copy of each license available on demand for inspection by any person
authorized to enforce this chapter.
D.
Hours of operation. No adult entertainment business
shall be or remain open for business between 2:00 a.m. and 6:00 a.m.
on any day.
E.
Minimum interior lighting. The interior premises of
an adult entertainment business 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
foot candles as measured at the floor level. It shall be the duty
of the manager, and of any employees present on the premises, to ensure
that the illumination described above is maintained at all times that
the premises is occupied by patrons or is open for business.
F.
It shall be the duty of the manager, and of any employees
present on the premises, to ensure that no specified sexual activity
occurs in or on the adult entertainment business premises.
G.
It shall be the duty of the manager to ensure that
each employee present on the premises has a valid adult entertainment
business employee license on the premises of the adult entertainment
business.
A.
A person who operates or causes to be operated an
adult entertainment business which exhibits in a booth or viewing
room on the premises, through any mechanical or electronic image-producing
device, a film, video cassette, digital video disc, or other video
reproduction characterized by an emphasis on the display of specified
sexual activities or specified anatomical areas shall comply with
the following requirements.
(1)
Each application for an adult entertainment business
license shall contain a diagram of the premises showing the location
of all operator's stations, booths or viewing rooms, overhead lighting
fixtures, and restrooms, and shall designate all portions of the premises
in which patrons will not be permitted. Restrooms shall not contain
equipment for displaying films, video cassettes, digital video discs,
or other video reproductions. The diagram shall also designate the
place at which the license 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
shall be oriented to the north or to some designated street or object
and shall 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 Chief of Police 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)
It shall be the duty of the manager, and of any employees
present on the premises, 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.
(3)
The interior 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 foot candles as measured at the floor level. It shall be
the duty of the manager, and of any employees present on the premises,
to ensure that the illumination described above is maintained at all
times that the premises is occupied by patrons or open for business.
(4)
It shall be the duty of the manager, and of any employees
present on the premises, to ensure that no specified sexual activity
occurs in or on the licensed premises.
(5)
It shall be the duty of the manager to post conspicuous
signs in well-lighted entry areas of the business stating all of the
following:
(a)
That the occupancy of viewing rooms less than
150 square feet is limited to one person.
(b)
That specified sexual activity on the premises
is prohibited.
(c)
That the making of openings between viewing
rooms is prohibited.
(d)
That violators will be required to leave the
premises.
(e)
That violations of these regulations are unlawful.
(6)
It shall be the duty of the manager to enforce the
regulations articulated in Subsection B(5)(a) though (d) above.
(7)
The interior of the premises shall be configured in
such a manner that there is an unobstructed view from an operator's
station of every area of the premises, including the interior of each
viewing room, but excluding restrooms, to which any patron is permitted
access for any purpose. An operator's station shall not exceed 32
square feet of floor area. If the premises has two or more operator'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,
excluding restrooms, from at least one of the operator's stations.
The view required in this subsection must be by direct line of sight
from the operator's station. It is the duty of the manager to ensure
that at least one employee is on duty and situated in each operator's
station at all times that any patron is on the premises. It shall
be the duty of the manager, and it shall also be the duty of any employees
present on the premises, to ensure that the view area specified in
this paragraph remains unobstructed by any doors, curtains, walls,
merchandise, display racks or other materials or enclosures at all
times that any patron is present on the premises.
(8)
It shall be the duty of the manager to ensure that
no porous materials are used for any wall, floor, or seat in any booth
or viewing room.
C.
No patron shall knowingly enter or remain in a viewing
room less than 150 square feet in area that is occupied by any other
person.
D.
No patron shall knowingly be or remain within one
foot of any other patron while in a viewing room that is 150 square
feet or larger in area.
E.
No person shall knowingly make any hole or opening
between viewing rooms.
A.
It shall be the duty of the manager of an adult entertainment
business to: ensure that at least two conspicuous signs stating that
no loitering is permitted on the premises are posted on the premises
(at least one such sign must be posted outside the structure containing
the adult entertainment business); designate one or more employees
to monitor the activities of persons on the premises by visually inspecting
the premises at least once every 90 minutes or inspecting the premises
by use of video cameras and monitors; and provide lighting to the
exterior premises to provide for visual inspection or video monitoring
to prohibit loitering. Said lighting shall be of sufficient intensity
to illuminate every place to which customers are permitted access
at an illumination of not less than one foot candle as measured at
the floor level. If used, video cameras and monitors shall operate
continuously at all times that the premises are open for business.
The monitors shall be installed within an operator's station.
B.
No adult entertainment business shall erect a fence,
wall, or other barrier that prevents any portion of the parking lot(s)
for the establishment from being visible from a public right-of-way.
C.
It shall be unlawful for a person having a duty under
this section to knowingly fail to fulfill that duty.
A.
A person who knowingly violates, disobeys, omits,
neglects, or refuses to comply with or resists the enforcement of
any of the provisions of this chapter shall be guilty of a violation
and, upon conviction, be subject to fine no less than $750 nor greater
than $900 for each offense. Each day a violation is committed or permitted
to continue shall constitute a separate offense and shall be fined
as such.
B.
A person who knowingly violates, disobeys, omits,
neglects, or refuses to comply with or resists the enforcement of
any of the provisions of this chapter and who has been convicted of
a violation of this chapter within the preceding 24 months shall be
guilty of a violation and, upon conviction, be subject to a term of
imprisonment not in excess of 15 days, a fine no less than $900 nor
greater than $1,500, or both such fine and imprisonment. Each day
a violation is committed or permitted to continue shall constitute
a separate offense and shall be fined as such.
C.
A person who knowingly violates, disobeys, omits,
neglects, or refuses to comply with or resists the enforcement of
any of the provisions of this chapter and who has been convicted of
a violation of this chapter within the preceding 12 months shall be
guilty of an unclassified misdemeanor and, upon conviction, be subject
to a term of imprisonment in excess of 15 days but not in excess of
one year, a fine no less than $1,500 nor greater than $2,500, or both
such fine and imprisonment. Each day a violation is committed or permitted
to continue shall constitute a separate offense and shall be fined
as such.
D.
The Village Attorney is hereby authorized to institute
civil and criminal proceedings, as allowed by law, necessary for the
enforcement of this chapter to enjoin, prosecute, restrain, or correct
violations hereof. Such proceedings shall be brought in the name of
the Village; provided, however, that nothing in this section and no
action taken hereunder shall be held to exclude such criminal or administrative
proceedings as may be authorized by other provisions of this chapter,
or any of the laws in force in the Village or to exempt anyone violating
this Code or any part of the said laws from any penalty which may
be incurred.
All preexisting adult entertainment businesses
lawfully operating in the Village in compliance with all state and
local laws prior to the effective date of this chapter, and all adult
entertainment business employees working in the Village prior to the
effective date of this chapter, are hereby granted a de facto temporary
license to continue operation or employment for a period of 90 days
following the effective date of this chapter. By the end of said 90
days, all adult entertainment businesses and adult entertainment business
employees must conform to and abide by the requirements of this chapter.
A.
No patron, employee, or any other person shall knowingly
or intentionally, in an adult entertainment business, appear in a
state of nudity or engage in a specified sexual activity.
B.
No person shall knowingly or intentionally, in an
adult entertainment business, appear in a seminude condition unless
the person is an employee who while seminude remains at least six
feet from all patrons and on a stage at least 18 inches from the floor
in a room of at least 600 square feet.
C.
No employee who regularly appears seminude in an adult
entertainment business shall knowingly or intentionally touch a customer
or the clothing of a customer on the premises of an adult entertainment
business.
D.
No employee shall knowingly or intentionally touch
or make physical contact with the clothed or unclothed buttocks, breast,
lap, groin area, or pubic area of a patron on the premises of an adult
entertainment business.
E.
No patron of an adult entertainment business shall
knowingly or intentionally touch or make physical contact with the
clothed or unclothed buttocks, breast, lap, groin area, or pubic area
of an employee on the premises of an adult entertainment business.
F.
No person shall sell, use, or consume alcoholic beverages
on the premises of an adult entertainment business.
G.
No person shall knowingly or recklessly allow a person
under the age of 18 years to be or remain on the premises of an adult
entertainment business.
H.
No manager or licensee of an adult entertainment business
shall knowingly violate the regulations in this section or knowingly
allow an employee or any other person to violate the regulations in
this section.
I.
A sign in a form to be prescribed by the Chief of Police, and summarizing the provisions of Subsections A through G, shall be posted near the entrance of the adult entertainment business in such a manner as to be clearly visible to patrons upon entry. No person shall cover, obstruct, or obscure said sign.
This chapter does not impose strict liability.
Unless a culpable mental state is otherwise specified herein, a showing
of a knowing or reckless mental state is necessary to establish a
violation of a provision of this chapter. Notwithstanding anything
to the contrary, for the purposes of this chapter, an act by an employee
that constitutes grounds for suspension or revocation of that employee's
license shall be imputed to the adult entertainment business licensee
for purposes of finding a violation of this chapter, or for purposes
of license denial, suspension, or revocation, only if an officer,
director, or general partner, or a person who managed, supervised,
or controlled the operation of the business premises knowingly or
recklessly allowed such act to occur on the premises. It shall be
a defense to liability that the person to whom liability is imputed
was powerless to prevent the act.
This chapter and each section and provision
of said Chapter hereunder, are hereby declared to be independent divisions
and subdivisions and, not withstanding any other evidence of legislative
intent, it is hereby declared to be the controlling legislative intent
that if any provisions of said chapter, or the application thereof
to any person or circumstance is held to be invalid, the remaining
sections or provisions and the application of such sections and provisions
to any person or circumstances other than those to which it is held
invalid shall not be affected thereby, and it is hereby declared that
such sections and provisions would have been passed independently
of such section or provision so known to be invalid. Should any procedural
aspect of this chapter be invalidated, such invalidation shall not
affect the enforceability of the substantive aspects of this chapter.
Any provision(s) in the Village Code, including the provisions of Chapter 206, Licensed Occupations, specifically in conflict with any provision in this chapter is hereby deemed inoperative as to adult entertainment business licenses and adult entertainment business employee licenses.
