The Constitution and
the Legislature of the State of New York have conferred certain powers
upon the governing boards of local municipalities for the purpose
of regulating the uses of property within the boundaries of such municipality
for the purpose of promoting the health, safety, morals or general
welfare of the residents of such municipality. That pursuant to the
grant of such authority by the Constitution and the provisions of
the Town Law, the General Municipal Law, and the Municipal Home Rule
Law, the Town Board of Town of Kendall may enact a local law regulating
the use of property within the Town of Kendall for such purposes.
In some cases, the scope of the authority conferred upon local governing
bodies, in particular, the power or authority to regulate or even
prohibit certain activities, is subject to Federal Constitutional
protections and Congressional Legislative limitations.
It is the purpose of this article to regulate sexually oriented
businesses, to promote the health, safety, morals and general welfare
of the citizens of the Town of Kendall and to establish reasonable
and uniform regulations to prevent the continued harmful effect of
location and concentration of sexually oriented businesses within
the Town of Kendall. These regulations have neither the purpose nor
effect of imposing a limitation or restriction on the content of any
communicative materials, including sexually oriented materials. Similarly,
it is not the intent nor effect of these regulations 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 these regulations to condone or legitimize
the distribution of obscene materials.
A.
The following uses, as defined above, shall be designated adult uses:
B.
Adult uses shall be a permitted use in any General Business District
only, provided that:
(1)
An adult use may not be operated within 1,000 feet of the property
line/boundary of:
C.
The structure must be a minimum of 100 feet from the front setback.
D.
An adult use may not be operated in the same building, structure
of portion thereof containing another adult use.
E.
For the purpose this article, measurement shall be made in a straight
line, without regard to intervening structures or objects, form the
nearest portion of the building or structure used as part of the premises
where an adult use is conducted to the nearest property line of the
premises of a church or public or private elementary or secondary
school or to the nearest boundary of an affected public park, residential
district or residential lot or child care facility.
F.
For purposes of Subsection B(2)(b) above, the distance between any two adult uses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
G.
All adult uses shall be conducted in an enclosed building. Regardless
of location or distance, no one who is passing by an enclosed building
having a use governed by these provisions shall be able to visually
see any display, decoration, sign, window or other opening, shall
not contain any specified anatomical area or any specified sexual
activity by virtue of any display which depicts or shows said area
or activity or suggests said areas or activity.
H.
All adult uses must have a management-controlled system of access
to insure that only persons over the age of 18 years are allowed to
enter establishment or area designated for adult use.
A.
Prior to commencement of any adult use business or upon any transfer
of ownership or control, the premises must be inspected and found
to be in compliance with all laws, rules and regulations of the Health
Department, Fire Department and Town Building and Zoning Enforcement
Officer, Fire Marshal and other code enforcement officials.
B.
The Health Department, Fire Department and Town Building and Zoning
Enforcement Officer, Fire Marshal and other code enforcement official
shall complete their certification that the premises is in compliance
or not in compliance of the inspection of the premises by such officials.
The certification shall be promptly presented to the Town Building
and Zoning Enforcement Officer.
C.
The Town Building and Zoning Enforcement Officer shall suspend the
right to conduct such adult use for a period not to exceed 30 days
if the officer determines that the owner and/or operator or an employee
of the owner and/or operator has:
(1)
Violated or is not in compliance with any section of this article.
(2)
Engaged in excessive use of alcoholic beverages while on the
adult use business premises.
(3)
Refused to allow an inspection of the adult use business premises
as authorized by this article.
(4)
Knowingly permitted gambling by any person on the adult use
business premises.
(5)
Knowingly allowed possession, use or sale of controlled substances
on the premises.
(6)
Knowingly allowed prostitution on the premises.
(7)
Knowingly allowed any act of sexual intercourse, sodomy, oral
copulation, masturbation or other sexual conduct to occur in or on
the permitted and/or licensed premises.
D.
An application or permittee and/or licensee shall permit representatives
of the County of State Police Department, Health Department, Fire
Department, Zoning and Building Department or other Town departments
or agencies to inspect the premises of an adult use business for the
purpose of ensuring compliance with the law at any time it is occupied
or open for business.
E.
Prior to any suspension, the Town Building and Zoning Enforcement
Officer shall provide the owner and/or operator a notice of violations
with the grounds for the suspension. The notice stating the grounds
shall be provided to the owner and/or operator in writing. The owner
and/or operator has the right to present its response to this notice
to the Town Building and Zoning Enforcement Officer within 10 days
of receipt of said notice. The response may be made in person, orally
or in writing. The Town Building and Zoning Enforcement Officer may
not suspend the right to conduct such adult use until 15 days after
the notice is given to the owner and/or operator or until after receiving
the owner's and/or operator's response, whichever is sooner.
A.
No person shall engage in, conduct, or carry on an adult business
in the Town of Kendall unless a complete application therefor has
been submitted, approved, and a permit issued by the Town of Kendall
Code Enforcement Officer.
B.
Each application for an adult business shall be submitted to the
Code Enforcement Officer for review by the Town of Kendall Planning
Board, shall be accompanied by a nonrefundable application fee, and
shall contain the following information:
(1)
The name, residential street address, and residential mailing
address (if different) of the applicant.
(2)
The street address and mailing address (if different) of the
proposed adult business.
(3)
All other residences of the applicant for the three-year period
immediately preceding the date of application.
(4)
The business, occupation, or employment of the applicant for
the three-year period immediately preceding the date of the application.
(5)
Applicant must be at least 18 years of age. Must also provide
minimum of two forms of state or federally issued identification,
one being a photo ID.
(6)
A description of the facilities and services to be available
on the premises of the proposed adult business.
(7)
The history of the application in the operation of similar establishments
or businesses including, but not limited to, whether or not the person,
in previously operating in this state or another city or state under
license, has had such permit revoked or suspended and the reason therefore,
and the business activity or occupation subsequent to such action
of suspension or revocation.
(8)
A criminal record, if any, other than traffic violations of
the applicant. If the applicant is an association or partnership,
the criminal records of each associate or partner. If the applicant
is a corporation, the criminal record of each officer or director
of the corporation and each of the stockholders owning more than 10%
of the stock of the corporation.
C.
Upon receipt of a complete application and fee as provided for above,
the Town of Kendall shall make or cause to be made a thorough investigation
of the applicant's background and submit the application to the
Town of Kendall Planning Board for review.
A violation of any provision of this article shall constitute a violation and shall be subject to immediate suspension of any permit issued by the Town of Kendall, in addition to the penalties set forth in § 265-5 above. Any permit issued may be suspended for period of up to six months or permanently revoked upon conviction of violation of any provisions of this article.
