[HISTORY: Adopted by the Village Board of
the Village of Port Chester 9-2-2008 by L.L. No. 8-2008. Amendments noted where
applicable.]
The purpose of this chapter is to establish
licensing requirements and operational regulations for restaurants
that provide ancillary entertainment to protect the health, safety,
and welfare of the community and to provide demarcation between entertainment
that is incidental to a restaurant and entertainment that is more
than incidental to a restaurant or other commercial establishment.
For the purpose of this chapter, the following
words shall have the following meanings:
Activities and areas unrelated to the preparation and service
of food to restaurant patrons, including but not limited to lounges,
bars, live performance, and disc jockey areas.
Any person who performs any service on the premises of a
restaurant, 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 a restaurant or whose services are performed on
the premises of a restaurant. Employee does not include an individual
exclusively on the premises to engage in live entertainment provided
by the restaurant.
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 actual power to operate the restaurant or
control the operation, management or policies of the restaurant or
legal entity which operates the restaurant;
Ownership of a financial interest of 30% or
more of the restaurant or of any class of voting securities of the
restaurant; or
Holding an office (e.g., president, vice president,
secretary, treasurer, managing member, managing director, etc.) in
a legal entity which operates the restaurant.
A person in whose name a license to operate a restaurant
with ancillary entertainment has been issued, as well as the individual
or individuals listed as an applicant on the application for a restaurant
ancillary entertainment license.
A person on the premises of the restaurant who is authorized
to exercise, or who in fact exercises, control of the business premises.
A person may be a manager regardless of whether that person is an
owner of the business or a licensee under this chapter.
The real property upon which the restaurant is located, and
all appurtenances thereto and buildings thereon, including, but not
limited to, the restaurant, 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 a restaurant ancillary entertainment license.
An establishment which prepares and serves food and beverages to patrons primarily for consumption at tables or a counter within the building. As used in this chapter, restaurant also includes drive-in restaurant, fast food restaurant, restaurant, full-service, and restaurant, carry out as those terms are or may be defined in Chapter 345, § 345-2 of the Code of the Village of Port Chester.
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 restaurant premises on or in which the ancillary entertainment
is to be conducted.
A.
It shall be unlawful for any person to conduct, maintain
or operate, or engage in the business of conducting, maintaining or
operating a restaurant with ancillary entertainment without a valid
restaurant ancillary entertainment license.
B.
An applicant for a restaurant ancillary entertainment
license shall file at the office of the Village Clerk a complete application
made on a form provided by the Village Clerk. If an individual seeks
a restaurant ancillary entertainment license, he shall sign and certify
the application for a license as applicant. If a person who seeks
a restaurant ancillary entertainment license is other than an individual,
each person with an influential interest in the restaurant or in a
legal entity that controls the restaurant shall sign and certify the
application as applicant. Each applicant must be qualified under this
chapter and each applicant shall be considered a licensee if a license
is granted.
C.
An application for a restaurant ancillary entertainment license shall be considered complete when it is notarized and 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. The application
shall also include the name of the legal entity(ies) intending to
operate the restaurant as well as the doing business as name of the
restaurant.
(2)
Current business address or another mailing address
for the applicant.
(3)
Written proof of age, in the form of a driver’s
license, a picture identification document containing the applicant’s
date of birth issued by a governmental agency, or a copy of a birth
certificate accompanied by a picture identification document issued
by a governmental agency.
[Amended 12-7-2009 by L.L. No. 14-2009]
(4)
The restaurant name, street address, legal description,
mailing address, and phone number.
[Amended 12-7-2009 by L.L. No. 14-2009]
(5)
The name and business address of the statutory agent
or other agent authorized to receive service of process for the operator
of the restaurant.
(6)
A statement whether an applicant has been convicted
of or has pleaded guilty or nolo contendre 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 §§ 701-703-b.
[Amended 12-7-2009 by L.L. No. 14-2009]
(7)
Four copies of a sketch or diagram showing the configuration of the restaurant premises, including a statement of the total floor area occupied by the restaurant, a statement of the total floor area devoted to food preparation, and a statement of the total floor area devoted to ancillary entertainment. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. The Village Clerk may waive the requirements of this Subsection C(7) for a renewal application if the applicant adopts a sketch or diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
[Amended 12-7-2009 by L.L. No. 14-2009]
(8)
A copy of the valid permit to operate a food service
establishment at the restaurant issued by the Westchester County Health
Department.
(9)
A copy of the current certificate of occupancy to
operate the restaurant.
D.
The information provided pursuant to this section
shall be supplemented, in writing, to the Village Clerk within 10
working days of a change in circumstances which would render the information
previously submitted false or incomplete.
A.
An applicant may obtain an annual license which expires 12 months from the date of issuance, or an occasional license which may be issued for up to 20 days in a twelve-month period. 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.
Within 20 days of the filing of a complete restaurant
ancillary entertainment license application, the Village Clerk shall
either issue a license to the applicant or issue a written notice
of intent to deny a license to the applicant. The applicant shall
allow Village officials access to the floor area of the premises,
during regular business hours, for the limited purpose of verifying
compliance with the specific standards set forth in this chapter.
The Village Clerk shall issue or renew a license unless:
(1)
The total floor area devoted to ancillary entertainment
exceeds 25% of the total floor area of the establishment.
(2)
An applicant is less than 18 years of age.
(3)
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.
(4)
The applicant does not possess a valid permit from
the Westchester County Health Department to operate a food service
establishment at the restaurant.
(5)
The applicant does not possess a current certificate
of occupancy to operate the restaurant.
(6)
The license application fee required by this chapter
has not been paid.
(7)
An applicant has been convicted of or pled guilty
or nolo contendre 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
to 703-b shall not disqualify an applicant from receiving a license,
nor shall an applicant be denied a license if such a denial would
violate New York State Correction Law §§ 751 to 753.
[Amended 12-7-2009 by L.L. No. 14-2009]
(8)
An applicant has suffered or permitted the restaurant
on or in which the ancillary entertainment is to be conducted, through
improper or inadequate maintenance and supervision, to be used for
the commission of any specified criminal activity as defined in this
chapter.
(9)
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.
(10)
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 restaurant 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 restaurant 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 restaurant premises.
D.
The Village Clerk 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 the restaurant on which the ancillary entertainment is to be conducted.
A.
The application fee for each annual restaurant ancillary entertainment license is set forth in Village Code § 175-4.
B.
The application fee for each occasional restaurant ancillary entertainment 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 restaurant ancillary entertainment license
issued under this chapter shall be posted and prominently displayed
at the main entrance of the restaurant.
A licensee shall provide a manager or other
responsible party on the premises throughout the entire time that
entertainment is provided.
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, nor shall
such license be used on any location other than the location stated
in such license.
Restaurants with ancillary entertainment, and
their employees, shall permit employees of the Village to inspect,
from time to time on an occasional basis, the portions of the restaurant
premises where patrons are permitted, for the purpose of ensuring
compliance with the specific regulations of this chapter, during those
times when the restaurant 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.
If, during the term of the licensing period, one or more persons with an influential interest in the licensed restaurant is substituted or added, such substituted or added person with an influential interest shall, within 10 days of such substitution or addition, file with the Village Clerk an application for an approval of the change of licensees on such forms as are prescribed by the Village Clerk. Within 10 days of such a submission, the Village Clerk shall approve the application, in writing, if the application meets the standards set forth in § 250-4. If the application does not meet the standards set forth in § 250-4, the Village Clerk shall, within 10 days of the submission, issue a written notice of intent to deny the license and shall follow the procedures set forth in § 250-14.
A.
A restaurant that has obtained a restaurant ancillary
entertainment license under this chapter may provide ancillary entertainment
to the patrons of such establishments, provided that:
[Amended 12-7-2009 by L.L. No. 14-2009]
(1)
Live
entertainment shall only be permitted between the hours of 9:00 a.m.
and 2:00 a.m. the next day, inclusive;
(2)
No
more than 25% of the total restaurant floor area may be used for ancillary
entertainment;
(3)
Ancillary
entertainment referenced in this section shall be permitted only within
the interior of the restaurant establishment and shall be clearly
subordinate in area, extent, hours of operation, and purpose to areas
designated for food preparation, service, and consumption;
(4)
No
recreational dancing by patrons shall be permitted;
(5)
No
employee of the establishment 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 the
establishment; and
(6)
No
patron of the establishment 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 the
establishment.
B.
Upon request of a patron or guest of a restaurant,
such patron or guest 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 and guests.
The Village Clerk may issue a written notice
of intent to suspend a restaurant ancillary entertainment license
for a period not to exceed 30 days if the licensee has knowingly violated
this chapter or has knowingly allowed an employee or any other person
to violate this chapter.
A.
The Village Clerk shall issue a written notice of
intent to revoke a restaurant ancillary entertainment license 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 Village Clerk shall issue a written notice of
intent to revoke a restaurant ancillary entertainment license if:
(1)
A licensee has knowingly given false information in
the application for the restaurant ancillary entertainment license;
(2)
A licensee has knowingly or recklessly engaged in
or allowed possession, use, or sale of controlled substances on the
premises of the restaurant;
(3)
A licensee has knowingly or recklessly engaged in
or allowed prostitution on the premises of the restaurant;
(4)
A licensee knowingly or recklessly allowed ancillary
entertainment in the restaurant during a period of time when the restaurant
ancillary entertainment license was finally suspended or revoked;
(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 restaurant;
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 restaurant ancillary entertainment
license, the revocation shall continue for one year and the licensee
shall not be issued any restaurant ancillary entertainment license
for one year from the date revocation becomes effective.
A.
When the Village Clerk issues a written notice of
intent to deny, suspend, or revoke a license, the Village Clerk 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 Village Clerk for the respondent. The notice shall specify
a date, not less than 10 days nor more than 20 days after the date
the notice is issued, on which the hearing officer shall conduct a
hearing on the Village Clerk's written notice of intent to deny, suspend,
or revoke the license.
(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 Village Clerk's witnesses. The Village Clerk
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 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 Village Clerk 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 Village Clerk 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 10 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 licensee that possesses a valid annual restaurant ancillary
entertainment license on the date on which the complete application
is filed with the Village Clerk. Upon the filing of any court action
to appeal, challenge, restrain, or otherwise enjoin the Village's
enforcement of the denial, suspension, or revocation, the Village
Clerk shall immediately issue the respondent a provisional license.
The provisional license shall allow the respondent to continue providing
entertainment as an ancillary use to a restaurant under this chapter
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.
Any person who 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 a fine of not 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.
[Amended 12-7-2009 by L.L. No. 14-2009]
B.
The Village Attorney is hereby authorized to institute
civil proceedings necessary for the enforcement of this chapter to
prosecute, restrain, or correct violations hereof. Such proceedings,
including suit for an injunction, 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.
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 shall be imputed
to the restaurant ancillary entertainment 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 restaurant ancillary entertainment licenses.
