[HISTORY: Adopted by the Board of Trustees
of the Village of Port Chester 7-19-1993 by L.L. No. 11-1993; amended in its entirety 6-1-2009 by L.L. No. 7-2009. Subsequent amendments
noted where applicable.]
GENERAL REFERENCES
Adult entertainment businesses — See Ch. 122.
Building Code administration and enforcement — See Ch. 151.
Catering and events establishments — See Ch. 155.
Fees — See Ch. 175.
Licensed occupations — See Ch. 206.
Nuisances — See Ch. 224.
Public decency — See Ch. 245A.
Theaters — See Ch. 298.
Zoning — See Ch. 345.
A.
Purpose. It is the purpose of this chapter to regulate dance halls,
cabarets and similar commercial establishments in order to promote
the health, safety and general welfare of the citizens of the Village
and the patrons of such establishments and to establish reasonable
and uniform regulations to prevent the deleterious secondary effects
of such establishments 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 or any form of expression. Similarly, it is neither the
intent nor effect of this chapter to restrict or deny access by adults
to materials protected by the First Amendment or to deny access by
the distributors and exhibitors of entertainment to their intended
market.
B.
Findings and rationale. Based on evidence of the adverse secondary
effects of dance halls, cabarets and similar commercial establishments,
including certain kinds of adult entertainment establishments, 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 Dallas v. Stanglin, 490 U.S. 19 (1989);
Festa v. New York City Dept. of Consumer Affairs, 820 N.Y.S.2d 452
(N.Y. Sup. 2006), aff'd with modification, 830 N.Y.S.2d 133, 37 A.D.3d
343 (N.Y. App. Div. 2007), appeal dismissed by, 872 N.E.2d 870 (N.Y.
2007); Inc. Village of Babylon v. John Anthony's Water Cafe, Inc.,
137 A.D.2d 792, 525 N.Y.S.2d 337 (N.Y. App. Div. 1988); Cemco Rest.,
Inc. v. Ten Park Ave. Tenants Corp., 135 A.D.2d 461, 552 N.Y.S.2d
151 (N.Y. App. Div. 1987); Lyn v. Inc. Village of Hempstead, No. 03-CV-5041,
2007 WL 1876502 (E.D.N.Y. June 28, 2007); Willis v. Town of Marshall,
426 F.3d 251 (4th Cir. 2005); City of Littleton v. Z.J. Gifts D-4,
L.L.C., 541 U.S. 774 (2004); City of Erie v. Pap's A.M., 529 U.S.
277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Buzzetti
v. City of New York, 140 F.3d 134 (2d Cir. 1998); Gold Diggers, LLC
v. Town of Berlin, 469 F. Supp. 2d 43 (D. Conn. 2007); 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);
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);
and Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005), the
Board of Trustees finds:
(1)
Dance halls and cabarets, 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, noise and traffic congestion,
prostitution, potential spread of disease, lewdness, public indecency,
illicit drug use and drug trafficking and negative impacts on surrounding
properties.
(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 subcategories
of commercial entertainment establishments. Additionally, the Village's
interest in regulating dance halls and cabarets extends to preventing
future secondary effects of either current or future 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
dance halls and cabarets, including the judicial opinions and reports
related to such secondary effects.
For purposes of this chapter, the words and phrases defined
in the sections hereunder shall have the meanings therein respectively
ascribed to them unless a different meaning is clearly indicated by
the context.
A nightclub, bar, juice bar, restaurant, or similar commercial
establishment with an occupancy greater than 25 people, regardless
of whether alcoholic beverages are served, which regularly devotes
25% or more of its total floor area to dance floors, live performance
areas, and/or disc jockey areas, and is not an “adult cabaret”
as defined in the Village Code. The term "cabaret" shall include establishments
customarily called "discotheques." It shall also include a ship or
boat moored or tied to a dock, pier or shore and which contains a
cabaret in use while so moored or tied.
[Amended 3-1-2010 by L.L. No. 2-2010]
The Chief of the Port Chester Police Department.
See definition of "cabaret."
These words describe and pertain to any person who performs
any service on the premises of a cabaret 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 delivery of goods to the premises.
"Employee" does include any security guard employed by a cabaret or
whose services are performed on the premises of a cabaret.
Any of the following:
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 cabaret or control the operation,
management or policies of the cabaret or legal entity which operates
the cabaret;
Ownership of a financial interest of 30% or more of the cabaret
or of any class of voting securities of the cabaret; or
Holding an office (e.g., president, vice president, secretary,
treasurer, managing member, managing director, etc.) in a legal entity
which operates the cabaret.
A person in whose name a license to operate a cabaret has
been issued, as well as the individual or individuals listed as an
applicant on the application for a cabaret license.
[Amended 3-1-2010 by L.L. No. 2-2010]
Any person on the premises of a cabaret 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 a cabaret 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 cabaret is located, and
all appurtenances thereto and buildings thereon, including, but not
limited to, the cabaret, 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 cabaret 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.
Any room that is less than 300 square feet to which any patron
is permitted access for any purpose, excluding restrooms.
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 cabaret
premises.
Any of the following:
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 Village of Port Chester, New York.
The Village Manager of the Village of Port Chester or his
or her designee.
[Added 2-22-2022 by L.L. No. 5-2022]
A.
Cabaret
license. It shall be unlawful for any person to conduct, maintain
or operate, or engage in the business of conducting, maintaining or
operating, a cabaret without a valid cabaret license.
B.
[1]Application. An applicant for a cabaret license shall file with the Village Manager a complete application made on a form provided by the Village. A cabaret may designate an individual with an influential interest in the business to file its application for a cabaret license on behalf of the business. The application shall be signed as required by Subsection C herein and shall be notarized. An application 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 B, accompanied by the appropriate licensing fee.
[Amended 3-1-2010 by L.L. No. 2-2010; 2-22-2022 by L.L. No. 5-2022]
(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, 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.
(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 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 said fingerprints to the
New York State Division of Criminal Justice Services for a criminal
convictions investigation. The Village Manager shall secure from the
applicant the required fee for said investigation in the form of a
check or money order as specified in the application form. 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 Village Manager.
(5)
The business name, street address, legal description, mailing address,
and phone number of the cabaret, as well as the name of the legal
entity(ies) intending to operate the cabaret and the doing-business-as
name of the cabaret.
(6)
The name and business address of the statutory agent or other agent
authorized to receive service of process for the operator of the cabaret.
(7)
A statement of whether an applicant has been convicted of or has
pleaded 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 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):
(9)
A statement of whether an applicant may perform security guard functions
on the cabaret 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 a cabaret license shall be accompanied by a legal description of the property where the business is located and four copies of a schematic, certified as accurate by a professional engineer or architect, showing the interior configuration of the cabaret premises, including the location and floor area of any small party room in the cabaret, a statement of the total floor area occupied by the cabaret, a statement of the total floor area devoted to food preparation (if any) and a statement of the total floor area devoted to dance floors, live performance areas and/or disk jockey areas. The schematic shall also show the location of restrooms and shall designate all portions of the premises in which patrons will not be permitted. 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. The Village Manager may waive the requirements of this Subsection B(10) for a renewal application if the applicant adopts a legal description and schematic that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
(11)
An application for a cabaret license shall be accompanied by
written documentation that the cabaret 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 a cabaret 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 cabaret premises during business hours
for the limited purpose of verifying compliance with the specific
standards set forth in this chapter.
C.
Signature. If a person who seeks a cabaret license under this section
is an individual, he shall sign the application for a license as applicant.
If a person who seeks a cabaret license is other than an individual,
each person with an influential interest in the cabaret or in a legal
entity that controls the cabaret 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.
[Amended 3-1-2010 by L.L. No. 2-2010; ]
D.
The information provided pursuant to this section shall be supplemented,
in writing, to the Village Manager within 10 working days of a change
in circumstances which would render the information previously submitted
false, out-of-date or incomplete.
[Amended 3-1-2010 by L.L. No. 2-2010; 2-22-2022 by L.L. No. 5-2022]
A.
An applicant may obtain an annual cabaret license, 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.
[Amended 3-1-2010 by L.L. No. 2-2010]
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.
Cabaret license. Upon the filing of a complete application for a
cabaret license, the Village Manager shall immediately issue a temporary
license to the applicant if the complete application is from a preexisting
cabaret that is lawfully operating in the Village and the complete
application, on its face indicates that the applicant is entitled
to an annual cabaret 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 cabaret license application,
the Village Manager shall either issue a license to the applicant
or issue a written notice of intent to deny a license to the applicant.
The Village Manager shall issue or renew a cabaret license unless:
[Amended 2-22-2022 by L.L. No. 5-2022]
(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 cabaret.
(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 a cabaret license,
nor shall an applicant be denied a cabaret 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 New York State Building and Fire Code have been
inoperable or lacking from required locations.
(e)
Fights, assaults or other disturbances of a similar nature have
occurred in or about 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 cabaret 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 cabaret 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 cabaret
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 cabaret is not covered by a current liability insurance
policy that satisfies the requirements set forth in this chapter.
(11)
The cabaret is not in compliance with the minimum interior lighting
requirements or the interior configuration requirements of this chapter.
(13)
The cabaret is in violation of the New York State Uniform Fire
Prevention and Building Code.
D.
[2]The Village Manager 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.
[Amended 2-22-2022 by L.L. No. 5-2022]
E.
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 a cabaret, the address
of the cabaret. The cabaret license shall be posted and prominently
displayed at the main entrance of the establishment so that it may
be read at any time that the business is occupied by patrons or is
open to the public.
[Amended 3-1-2010 by L.L. No. 2-2010]
B.
[1]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.
[1]
Editor's Note: Former Subsection B, regarding the application
fee for a cabaret employee license, was repealed 3-1-2010 by L.L.
No. 2-2010. This local law also provided for the redesignation of
former Subsection C as Subsection B.
Each cabaret license issued under this chapter shall be posted
and prominently displayed at the main entrance of the establishment.
Cabaret licensees shall provide a manager or other responsible
party on the premises when the cabaret 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 cabaret license shall
be used on any location other than the location stated in such cabaret
license.
[Amended 3-1-2010 by L.L. No. 2-2010]
Cabarets and cabaret employees shall permit employees of the
Village to inspect, from time to time on an occasional basis, the
portions of the cabaret premises where patrons are permitted, for
the purpose of ensuring compliance with the specific regulations of
this chapter, during those times when the cabaret is occupied by patrons
or is open to the public. This section shall be narrowly construed
by the Village to authorize reasonable inspections of the licensed
premises pursuant to this chapter.
A.
Menu. Upon request of a patron of a cabaret, 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. A cabaret shall maintain 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.
C.
Security guards.
(1)
A cabaret shall maintain at least one security guard on the premises
at all times when the cabaret is occupied by patrons or is open to
the public. A cabaret shall maintain at least two security guards
on the premises when 75 to 149 patrons are present at the same time.
A cabaret 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. A cabaret shall not admit any additional patron
to the premises if doing so would cause the cabaret 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
| |
|
Every 1 to 75 additional
|
At least 1 additional
|
(2)
When employing or retaining the services of a security guard, a cabaret
shall comply with the provisions of Article 7-A of the General Business
Law. A cabaret 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 and shall require each
security guard to maintain on his or her person proof of registration
at all times on the premises.
[Amended 3-1-2010 by L.L. No. 2-2010]
(3)
The
Chief of Police shall report any violation of the provisions of this
section to the State Liquor Authority if the licensee holds a license
pursuant to the Alcoholic Beverage Control Law.
[Added 3-1-2010 by L.L. No. 2-2010]
D.
Hours of operation. No cabaret shall be or remain open for business
between 4:30 a.m. and 6:00 a.m. on any day.
E.
Minimum interior lighting. The interior premises of a cabaret 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.
Small party room configuration. Any small party room, as defined
in this chapter, shall have an unobstructed doorway open to the rest
of the cabaret and shall be configured so that there is an unobstructed
direct line of sight from the open doorway to every area of that small
party room. It shall be the duty of the manager, and of any employees
present on the premises, to ensure that the doorway to a small party
room remains open and unobstructed while the cabaret is occupied by
patrons or open to the public. The manager shall post a sign beside
the doorway to any small party room that is less than 150 square feet
that shall state: "It is a violation of local law for a patron to
enter or remain in this room if it is occupied by any other person."
It shall be the duty of the manager, and of any employees present
on the premises, to enforce the one-person occupancy limit for any
small party room that is less than 150 square feet.
G.
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 cabaret premises.
H.
It shall be the duty of the manager to ensure that each employee
present on the premises has a valid cabaret employee license on the
premises of the cabaret.
A.
It shall be the duty of the manager of a cabaret 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 cabaret.); 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.
B.
No cabaret 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.
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 a cabaret.
B.
No patron of a cabaret 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 a
cabaret.
C.
No patron, employee or any other person shall knowingly or intentionally,
in a cabaret, appear in a state of nudity or seminudity or engage
in a specified sexual activity.
D.
No patron shall knowingly enter or remain in a small party room that
is less than 150 square feet that is occupied by any other person.
E.
No person shall knowingly or recklessly allow a person under the
age of 18 years to be or remain on the premises of a cabaret.
F.
No manager or licensee of a cabaret shall knowingly violate the regulations
in this section or knowingly allow an employee or any other person
to violate the regulations in this section.
[Amended 3-1-2010 by L.L. No. 2-2010; 2-22-2022 by L.L. No. 5-2022]
The Village Manager shall issue a written notice of intent to
revoke a cabaret license for a period not to exceed 30 days if the
cabaret licensee has knowingly violated this chapter or has knowingly
allowed an employee or any other person to violate this chapter.
A.
The Village Manager shall issue a written notice of intent to revoke
a cabaret 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.
[Amended 3-1-2010 by L.L. No. 2-2010; 2-22-2022 by L.L. No. 5-2022]
B.
The Village Manager shall issue a written notice of intent to revoke
a cabaret license if:
[Amended 3-1-2010 by L.L. No. 2-2010; 2-22-2022 by L.L. No. 5-2022]
(1)
A licensee has knowingly given false information in the application
for the cabaret license;
(2)
A licensee has knowingly or recklessly engaged in or allowed possession,
use or sale of controlled substances on the premises of the cabaret;
(3)
A licensee has knowingly or recklessly engaged in or allowed prostitution
on the premises of the cabaret;
(4)
A licensee has knowingly or recklessly operated the cabaret 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 cabaret;
(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 cabaret.
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 any cabaret license for
one year from the date revocation becomes effective.
[Amended 3-1-2010 by L.L. No. 2-2010]
[Amended 3-1-2010 by L.L. No. 2-2010; 2-22-2022 by L.L. No. 5-2022]
A.
When the Village Manager issues a written notice of intent to deny, suspend or revoke a license, the Village Manager 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 Manager 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 Village Manager, a written request for a hearing. If the respondent does not request a hearing within said 10 days, the Village Manager’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.
(1)
If the respondent does make a written request for a hearing within
said 10 days, then the Village Manager 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 Village shall provide for the hearing
to be transcribed.
(2)
At the hearing, the respondent shall have the opportunity to present
all of the 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 Manager’s witnesses. The Village Manager
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.
(3)
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 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 Manager to immediately withdraw the intent to deny, suspend
or revoke the license and notify the respondent, in writing, by certified
mail of such action. If the respondent is not yet licensed, the Village
Manager 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 cabaret that
is lawfully operating as a cabaret on the date on which the complete
cabaret application is filed with the Village Manager. 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 Village Manager shall
immediately issue the respondent a provisional license. The provisional
license shall allow the respondent to continue operation of the cabaret
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.
A 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 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 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
of 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 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 of 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 said laws from any penalty which may be incurred.
[Amended 3-1-2010 by L.L. No. 2-2010]
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 shall be imputed
to the cabaret 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.
[Amended 3-1-2010 by L.L. No. 2-2010]
In the event that a Village official is required to act or to
do a thing pursuant to this chapter within a prescribed time, and
fails to act or to do such thing within the time prescribed, said
failure shall not prevent the exercise of constitutional rights of
an applicant or licensee. If the act required of the Village official
under this chapter, and not completed in the time prescribed, includes
approval of condition(s) necessary for approval by the Village of
an applicant or licensee's application for a cabaret license (including
a renewal), the license shall be deemed granted and the business allowed
to commence operations the day after the deadline for the Village's
action has passed.
[Amended 3-1-2010 by L.L. No. 2-2010]
All preexisting cabarets lawfully operating in the Village in
compliance with all state and local laws prior to the effective date
of this chapter are hereby granted a de facto temporary license to
continue operation for a period of 90 days following the effective
date of this chapter. By the end of said 90 days, all cabarets must
conform to and abide by the requirements of this chapter.
This chapter, and each section and provision of said chapter
hereunder, are hereby declared to be independent divisions and subdivisions
and, notwithstanding 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, are 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.
[Amended 3-1-2010 by L.L. No. 2-2010]
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 cabaret licenses.
