[HISTORY: Adopted by the Town Board of the
Town of Evans 12-15-1993 by L.L. No. 13-1993. Amendments noted
where applicable.]
To ensure the public good and promote the public
welfare, the Town of Evans requires the licensing of all amusements,
live bands, refreshment businesses and restaurants and dance halls
or establishments that allow dancing in accordance with New York State
Town Law § 130.
As used in this chapter, the following terms
shall have the meanings indicated:
Includes all entertainments and businesses described in or
referred to in § 130, Subdivision 12, of the New York State
Town Law or to which said section is applicable, including circuses,
theaters, pool and billiard parlors, bowling alleys, athletic contests
or exhibitions and all similar amusements for money or hire, except
public hacks and vehicles, and except amusements conducted by churches,
schools, recognized fraternal, patriotic, religious or agricultural
societies or fire companies or under their auspices situated in the
Town of Evans outside the Village of Angola.
Includes an individual, society, club, firm, partnership,
corporation or association of persons, and the singular shall include
the plural number.
Public places of business or entertainment where dancing
is permitted (this shall not include dance schools) in the Town of
Evans outside the Village of Angola.
Includes any combustible or explosive composition or any
substance or combination of substances or article prepared for the
purpose of producing a visible or an audible effect by combustion,
explosion, deflagration or detonation and shall include blank cartridges,
toy pistols, toy cannons, toy canes or toy guns in which explosives
are used, the type of balloons which require fire underneath to propel
the same, firecrackers, torpedoes, skyrockets, Roman candles, Daygo
bombs, sparklers or other devices of like construction and any devices
containing any explosive or flammable compound or any tablets or other
device containing any explosive substance, except that the term "fireworks"
shall not include auto flares, paper caps containing not in excess
of an average of 0.25 of a grain of explosive content per cap and
toy pistols, toy canes, toy guns or other devices for use of such
caps, the sale and use of which shall be permitted at all times. Nothing
in this chapter shall be construed to prohibit the use of fireworks
by railroads or other transportation agencies for signal purposes
or illumination or the use of blank cartridges for a show or theater
or for signal or ceremonial purposes or in athletics or sports or
for use by military organizations.
[Added 6-6-2001 by L.L. No. 4-2001]
Entertainment performed by a person or a group of persons
actually playing musical instruments, electrically amplified or not,
situated in the Town of Evans outside the Village of Angola.
A restaurant, eating place, lunch counter, soft drink counter
or other similar place for the sale, for consumption upon the premises,
of foods and beverages within the Town of Evans, outside the Village
of Angola.
[Amended 6-6-2001 by L.L. No. 4-2001; 6-20-2012 by L.L. No.
2-2012]
A.
No
person or party shall establish, maintain or conduct an amusement,
public entertainment or refreshment business, as herein defined, without
first having procured from the Town Board of the Town of Evans a license
for that purpose. Applications for a license shall be filed with the
Town Clerk's office at least 30 days prior to anticipated need
of license.
[Amended 7-18-2018 by L.L. No.
4-2018]
(1)
Except as otherwise provided in this chapter, such licenses shall
run for the calendar year and shall expire on December 31, following
their date of issuance.
(2)
(3)
One license shall be required for a business which has numerous stands,
places, rooms or enclosures which are in direct connection with or
are contiguous to each other. Rooms, places or enclosures not contiguous
to or directly connected with one another shall be deemed separate
places of business and shall require a separate license.
B.
No
person or party shall establish, maintain or conduct or permit the
use, detonation, display or exhibition of fireworks, as herein defined,
which shall be deemed to be, for the purposes of this chapter, a public
entertainment (whether or not admission or fee is charged, and regardless
of whether admission to view the same is free or without any charge
whatsoever, and whether or not such use, detonation, display or exhibition
of fireworks is intended to produce profit or gain, for any person
or party), without first having obtained from the Town Board of the
Town of Evans a fireworks license for such purpose.
(1)
Such license shall license the otherwise prohibited use, detonation,
display or exhibition of fireworks, for a period of time not to exceed
four consecutive hours, and shall expire upon the expiration of such
four-hour period.
(2)
No license shall be issued unless the applicant shall furnish the
Town with a comprehensive liability insurance policy, issued by a
company duly licensed by the State of New York, insuring the applicant
against liability for damage to persons or property with limits of
not less than $1,000,000, single limit coverage, with no aggregate,
for bodily injury or death, and limits of not less than $100,000,
single limit coverage, with no aggregate, for property damage, which
said policy shall name the Town as an additional insured and shall
be noncancelable without 30 days' prior written notice to the
Town. In the event that such insurance is canceled, for any reason,
any such license issued shall be deemed null and void.
(3)
Fees. The fee for the application for such license, as well as for the issuance, shall be as set by resolution of the Town Board, from time to lime made and passed as set forth in Chapter 106, Fees. Such fee shall be nonrefundable, regardless of whether such application is approved and such license is granted or such application is denied.
(4)
Notwithstanding other provisions of this chapter, Erie County Health
Department investigation and approval shall not be required prior
to the issuance of such license where no statute, rule or regulation,
other than the provisions of this chapter, would otherwise require
the investigation by, or approval of, the premises or applicant.
(5)
In addition, unless specifically excused by the Town Board in the
consideration of such application, such application shall be filed
with the Town Clerk not less than 45 days in advance of the date upon
which such event, which is the subject of such application, is to
take place. The Town Board, by specific action in connection with
the consideration of such application, may excuse a failure to file
such application in a timely fashion, upon good cause shown.
(6)
Nothing herein shall be deemed to abrogate or repeal any provisions
of the Town Code of the Town of Evans relative to noise, or the regulation
of noise, except that the issuance of a license permitting a fireworks
display, as hereinabove set forth, shall suspend the operation of
such prohibitions against noise and exempt such fireworks display
from the application of such provisions regarding noise regulation.
[Amended 12-21-1994 by L.L. No. 12-1994; 6-20-2012 by L.L. No.
2-2012]
A.
Except
as hereinafter provided by license to be issued pursuant hereto, no
live band or orchestra shall be permitted to perform out-of-doors
or amplify the sound of such performance out-of-doors.
B.
Any
business licensed as a refreshment business as defined in this chapter
may apply for a license, to run on a calendar year, for the performance
of a live band or orchestra and/or for the amplification of the sound
of such performance out-of-doors.
(1)
Such performance and/or the amplification of the same shall be allowed
only between the hours of 11:00 a.m. and 11:00 p.m.
[Amended 7-18-2018 by L.L. No. 4-2018]
(2)
Nothing herein shall be deemed to abrogate or repeal any provisions
of the Town Code of the Town of Evans relative to noise, or the regulation
of noise.
(3)
The fee for such license shall be set, from time to time, by resolution
of the Town Board.
C.
For the purpose of a special and specific event not otherwise governed
by the terms and provisions of this chapter, a "special event license"
may be issued upon application and review thereof as set forth in
this chapter, for a "special event license" which will permit a live
band or orchestra to perform out-of-doors and/or amplify to the out-of-doors
the performance of the same and/or for the amplification of the sound
of such performance or sound from any sound-producing equipment out-of-doors
in the Town of Evans.
(1)
Any application for such license, in addition to the information required pursuant to § 95-5 of this chapter, shall specify the date and the time of the intended performance of such live band or orchestra or the production of such amplified sound out-of-doors, which time shall not exceed four consecutive hours specified in such application between the hours of 11:00 a.m. and 11:00 p.m.
[Amended 7-18-2018 by L.L. No. 4-2018]
(2)
No such special event license shall be issued to the same person,
persons, party or parties, and no premises shall be the site of such
live band or orchestra performance, more frequently than four times
in any calendar year.
(3)
Nothing herein shall be deemed to abrogate or repeal any provisions
of the Town Code of the Town of Evans relative to noise, or the regulation
of noise.
(4)
The fee for such license shall be set, from time to time, by resolution
of the Town Board.
[Amended 6-6-2001 by L.L. No. 4-2001]
A.
Any person desiring to establish, maintain or conduct
an amusement, public entertainment or a refreshment business or a
display or exhibition of fireworks, as herein defined, shall make
application for a license to the Town Board, in writing, upon blanks
prepared and furnished for such purpose by the Town Clerk, with whom
said applications shall be filed.
B.
Such application shall set forth the name and residence
of each of the applicants, if an individual, firm or partnership,
or the names of at least three of the principal officers and their
residences if the applicant is a society, club, corporation or association
of persons. Such applicants shall also state the following:
(1)
The length of time such applicant, if an individual,
firm or partnership, or the officers thereof, if the applicant is
a society, club, corporation or association of persons, has resided
at their current address; his or their places of current and previous
employment; and whether he, she or they, or any of them, have been
convicted of a crime or of a violation of any Town or city ordinance
and, if so, what offense, when and in what court.
(2)
The premises where such business or display or exhibition
of fireworks is to be conducted or maintained, giving a sufficient
description for ready identification.
(3)
Whether such business or display or exhibition of
fireworks is to be carried on in connection with any other kind of
business and, if so, what other business.
(4)
Whether the applicant has, either alone or with someone
else, previously engaged as owner or employee in conducting a bar,
cafe, club, hotel or other business of similar nature and, if so,
when, where and for how long, and if such application is relative
to a display or exhibition of fireworks, the qualification, licensing
or certification of the person or party to conduct the actual detonation
and/ or ignition of all such fireworks.
(5)
The name of the owner of the premises in which such
business is to be located, or upon which such display or exhibition
of fireworks is to take place, together with said owner's residence
address.
(6)
Such other information as the Town Board may from
time to time require.
C.
The application shall be signed and acknowledged before
a notary public or other officer authorized to administer oaths, and
if the officer has a seal it shall be thereunto affixed.
[Amended 7-18-2018 by L.L. No. 4-2018]
Upon receipt of a complete application, including payment of
applicable fees, the Town Clerk shall refer the same to the Erie County
Health Department and to the Chief of Police for investigation regarding
the character and reputation of the applicant, the cleanliness and
sanitary condition of the premises and the arrangement of the rooms
where such business is to be carried on with a view to the preservation
of the public peace, morals, health and safety. It shall be the duty
of the Health Officer and the Chief of Police to approve with their
signatures or to disapprove and to report the results of the investigations
promptly to the Town Clerk, who shall lay the same before the Town
Board.
A license may be refused by the Town Board if
it has good reason to believe that the applicant, or the person actually
in charge of the business, is not of good moral character or has,
within five years of the date of application, been convicted of a
felony or, within one year, of a misdemeanor or, within one year,
of any offense which shows his unfitness to conduct such a business
as described in this chapter or who has omitted a material statement
or made a false statement in the application required in this chapter
or that the place where the business is proposed to be located is
not a proper or appropriate place. If the application is rejected
by the Town Board, the Town Clerk shall thereupon notify the applicant,
in writing, of its decision and the reasons therefor. No applicant
whose license has been refused shall make further application therefor
within six months from the time of such rejection, unless he can show
that the reason for such rejection no longer exists. No license shall
be refused except for a specific reason and for the protection of
the public health, safety, good order or morals.
No license shall be transferred from one person
to another. Any license may be transferred from one place to another,
upon application therefor to the Town Board and an approval by the
Erie County Department of Health and the Chief of Police.
Every license issued in accordance with the
provisions of this chapter shall be immediately posted in the premises
licensed and, while in force, shall be kept posted in a conspicuous
place therein.
It shall be unlawful for any person owning,
conducting or supervising any amusement, public entertainment or refreshment
business, as defined in this chapter, to permit any disorderly, indecent,
immoral or unlawful conduct on or in such premises or to have or allow
on the premises any slot machine or gambling device of any kind.
[Amended 7-18-2018 by L.L. No. 4-2018]
The person or persons conducting business under the licenses
in this chapter shall operate said business pursuant to the requirements
of the Erie County Department of Health, New York State Workers'
Compensation, and New York State Disability and shall provide verification
of such compliance.
A.
The Town Board may revoke or suspend licenses granted
under this chapter by notice, in writing, whenever it shall appear
to its satisfaction from the recommendation of the Police Chief that
such licensee has violated any of the provisions of this chapter or
any other ordinance of the Town of Evans or of the laws of the State
of New York.
B.
All officers charged with the enforcement of this
chapter shall, at all times when said premises shall be open for business,
have access to any part of the premises occupied for the conduct of
said business to permit the examination of such premises. Refusal
by any person conducting such business or in charge thereof to permit
the examination of such premises shall be a violation of this chapter
and shall be sufficient reason for the revocation or suspension of
the license.
Whenever the Town Board, upon complaint or recommendation
or of its own motion, believes that sufficient cause therefor exists,
it shall cause to be served upon any licensee or person conducting
such business, as herein defined, a notice specifying the grounds
for a complaint and fixing a time and place at which the Town Board
will hear and determine the charges made, which shall be not less
than three days from the date of service of said notice, at which
time and place the person against whom the charges are filed shall
have an opportunity to be heard and to make his defense against such
charges.
Any licensee who shall violate or shall permit
a violation of any of the laws of the state or of this chapter or
any other ordinance or reasonable rule or regulation of the Town of
Evans within such licensed establishment shall be liable to have his
or its license revoked or suspended for such period as said Town Board,
in its discretion, may think proper. The Town Board shall also have
the right to suspend or revoke such license whenever it shall appear
to its satisfaction that the business so licensed is being conducted
in a manner which is detrimental to the morals, safety, peace or health
of the community; provided, however, that when such license is suspended
or revoked, the Town Board shall notify the licensee in writing and
give the reasons for such suspension or revocation.
When a license has been revoked, no other license
shall be issued to the same licensee within one year.
[Amended 6-6-2001 by L.L. No. 4-2001]
Any person or party who, individually, or by
such person's or party's clerk, agent or employee, shall conduct any
event or business without the license required by this chapter, or
violate any of the provisions thereof, or, having had a license issued
hereunder suspended or revoked, continues to conduct such event or
business during a prohibited time, shall, upon conviction of such
violation, be subject to a fine or penalty of not more than $250 or
15 days' imprisonment, or both, and, in addition, may have such license,
if then in force, suspended or revoked by the Town Board. Each day
on which such violation continues shall constitute a separate offense.
[Added 7-18-2018 by L.L. No. 4-2018[1]]
This chapter shall be enforced by the Code Enforcement Office
and the Police Department of the Town of Evans.
[Added 7-18-2018 by L.L. No. 4-2018]
The purpose of this section is to provide for variances from
this chapter in cases where the strict application thereof would result
in practical difficulties or unnecessary hardships inconsistent with
the general purpose and objectives of this chapter.
A.
Any variance to a license required pursuant to § 95-4 of this chapter may be granted by the Town Board of the Town of Evans in accordance with the standards and procedures set forth herein. In granting a variance, the Board may impose conditions to protect the best interests of the inhabitants of the premises, surrounding property owners and occupants, the immediate neighborhood and the Town as a whole.
B.
Variances may be instituted by filing an application with the Town Clerk using forms supplied by the Town Board, which shall include all information to be considered by the Town Board necessary to make its findings under Subsection D herein.
C.
Any variance of the provisions of § 95-4 of this chapter may be granted only in the event that at least one of the following circumstances is specifically found to exist by the Town Board and is so stated in the Board's findings:
(1)
That the strict application of said provisions of § 95-4 of this chapter would result in a specified unnecessary hardship to the applicant which arises because of exceptional or extraordinary circumstances to which the applicant is subject and which do not generally apply to other property owners or occupants in similar circumstances or other circumstances over which the applicant has no control.
(2)
That the property in question cannot yield a reasonable financial
return if used in a manner consistent with the provisions of this
chapter.
(3)
That the variance would not be materially detrimental to the purposes of § 95-4 of this chapter or to the owners or occupants of property in the district in which the property is located and that the variance requested is the minimum variance which would alleviate the specific unnecessary hardship found by the Board to affect the applicant.
D.
Within 30 days of receipt by the Town Board of a completed application for a variance, the Board shall give notice by public advertisement in the official newspaper of a public hearing to be held on the application not less than 10 days nor more than 30 days after such notice. Within 30 days of the completion of the public hearing, the Board shall grant, grant with conditions or deny the variance for which application has been made. The decision of the Board shall be in writing and shall contain each of the findings specified in Subsection C and the factual basis for each finding from the record of the hearing which shall support the decision of the Board.
[Added 7-18-2018 by L.L. No. 4-2018]
The invalidity of any section or provision of this chapter shall
not invalidate any other section or provision of this chapter.
