[HISTORY: Adopted by the Common Council of the City of North
Tonawanda 2-3-1998 by L.L. No. 1-1998. Amendments noted where applicable.]
A.
Declaration of legislative findings. The Common Council finds that
public nuisances exist in the City of North Tonawanda in the operation
of certain establishments and the use of property, including residential
premises, in flagrant violation of the penal laws of the State of
New York, and the laws of the City of North Tonawanda Municipal Code,
which substantially and seriously interfere with the interest of the
public in the quality of life and total community environment, commerce
in the City of North Tonawanda, property values and the public health,
safety, peace, comfort or convenience and welfare. The Common Council
further finds that the continued occurrence of such activities and
violations is detrimental to the health, safety and welfare of the
City of North Tonawanda and of the business thereof and the visitors
thereto. It is the purpose of this chapter to authorize and empower
the city to impose sanctions and penalties for such public nuisances
and such powers may be exercised either in conjunction with or apart
from the powers contained in other laws without prejudice to the use
of procedures and remedies available under such other laws. The Common
Council further finds that the sanctions and penalties imposed by
the city pursuant to this chapter constitute an additional and appropriate
method of law enforcement and are reasonable and necessary in order
to protect the health and safety of the people of the city and to
promote the general welfare.
B.
"Public nuisance" defined. For purposes of this chapter, a public
nuisance is declared to exist where:
(1)
Behavior in the use of or on premises which unreasonably interferes
with the health, safety, peace, comfort or convenience of the general
community occurring within the past six months and continuing with
such frequency and/or duration that the continued occupancy of the
premises will presume to continue such unreasonable interference and
regardless of whether or not a person has been convicted for violation
of the Penal Law of the State of New York or of the City of North
Tonawanda Municipal Code; or
(2)
A violation of Article 220 or 221 of the Penal Law which has resulted
in a criminal conviction pursuant to Article 220 or 221 of the Penal
Law within the prior twenty-four-month period of time where said conviction
has been predicated on events, circumstances or activities occurring
on the premises; and
(3)
Either one of the following:
(a)
A violation of Article 220 or 221 of the Penal Law which has
resulted in a criminal conviction under Article 220 or 221 of the
Penal Law within the past twenty-four-month period of time where said
conviction has been predicated on events, circumstances or activities
occurring on the premises; or
(b)
Discovery by any law enforcement agency or duly authorized agent
thereof of a quantity and quality of drug or controlled substance
on the premises, the amount of which would subject an individual,
if prosecuted, to a conviction under Article 220 or 221 of the Penal
Law, which discovery has not led to an arrest or conviction, within
the past twenty-four-month period of time.
C.
BUILDING INSPECTOR
CHIEF OF POLICE
CONVICTION
COUNCIL
MORTGAGEE
OWNER
PREMISES
TRIAL COURT
Other definitions. As used in this chapter, the following terms shall
have the meanings indicated:
The Building Inspector or Code Enforcement Officer of the
City of North Tonawanda or his or her designee.
The Chief of Police of the City of North Tonawanda.
Defined and applied in accordance with the provisions of
§ 1.20 of the Criminal Procedure Law.
The Common Council of the City of North Tonawanda.
The person who is listed as the mortgagee in any unsatisfied
or otherwise open mortgage recorded in the Niagara County Clerk's
Office.
The person in whose name the real estate affected by the
order is recorded as the owner in the office of the Niagara County
Clerk.
The building, place or property whereon the public nuisance
is being conducted or exists.
The City Court for the City of North Tonawanda which shall
be deemed to have jurisdiction over all matters brought pursuant to
this chapter.
A.
The Building Inspector or the Chief of Police shall have the authority
to order the discontinuance of any activity which constitutes a public
nuisance on or in any premises within the City of North Tonawanda.
B.
Where the public nuisance continues after service of the order or
orders to discontinue, the Building Inspector or Chief of Police may
refer same to the Trial Court for a hearing as hereinafter provided.
C.
The trial court, after notice of hearing and an opportunity to be
heard, shall be authorized to:
A.
Prior to the issuance of an order by the trial court, pursuant to
this chapter, the trial court shall give notice and opportunity for
a hearing to the owner, lessor, lessee, agent and all the persons
in possession or having charge of the premises wherein the public
nuisance has been or is being conducted, maintained or permitted.
Such notice and opportunity to be heard shall also be given to the
mortgagee of the premises. Such notice shall be served upon an owner,
lessor, lessee, agent and all the persons in possession or having
charge of the premises pursuant to § 735 of the Real Property
Actions and Proceeding Law and upon a mortgagee by means of certified
mail, return receipt requested, sent to the mortgagee's last
known address, provided that any service other than delivery to the
person to be served shall be complete immediately upon delivery, mailing
or posting without the necessity of filing proof of service with the
Clerk of any court before the hearing. This notice and all such court
notices and orders under this law shall be served by the City of North
Tonawanda Police Department.
B.
Contents of notice. Such notice shall:
(1)
Specify the activity or activities creating the nuisance;
(2)
Provide 30 days for elimination of the nuisance;
(3)
Inform the person to whom it is directed of his/her right to apply
within 10 days for a hearing, before the trial court;
(4)
Inform the owner, lessor, lessee, agent and all other persons in
possession or having charge of the premises that upon the expiration
of 30 days after service with no request for a hearing or upon noncompliance
with any written agreement reached at the hearing before the trial
court, the trial court may issue an order and the Building Inspector
or the Chief of Police shall act to obtain compliance as provided
by this chapter; and
(5)
Inform the owner/landlord of his/her obligation to post a copy of
the notice within five days, in a conspicuous place so that all persons
or occupants entering the premises shall have notice that the public
nuisance is being conducted, maintained or permitted on the premises
and that upon 30 days after service of the notice, the Building Inspector
or Chief of Police shall act to obtain compliance as provided, including
but not limited to the closing of the premises for a period not to
exceed one year.
C.
Lack of actual knowledge is not a defense. The lack of knowledge
of, acquiescence or participation in or responsibility for public
nuisance on the part of the owner, lessor, lessee, mortgagee and all
those persons in possession or having charge of a premises as agent
or otherwise or having any interest in the premises or personal property,
used in conducting or maintaining the public nuisance, shall not be
a defense by such owner, lessor, lessee, mortgagee and other such
persons.
D.
Issuance of orders.
(1)
The Building Inspector or Chief of Police shall issue the initial
order provided for in this chapter by posting said order on the premises
wherein the public nuisance is or has been occurring in violation
of law and mailing a copy of said order within one business day of
the posting of said order on the premises to the last known address
of the owner as listed in the office of the City Assessor or as designated
by the owner.
A.
Five business days after the issuance of a final order of the trial
court pursuant to Subsection D of § 62A-43 and upon the
request of the Building Inspector or the Chief of Police, officers
of the City of North Tonawanda Police Department are authorized to
act upon and enforce such orders.
B.
Where the trial court closes premises pursuant to this chapter, such
closing shall be for a period of time as the trial court may direct,
but in no event shall the closing be for a period of more than one
year from such issuance of the order pursuant to this chapter. If
the owner, lessor or lessee shall file a bond in the amount determined
by the trial court, but which may not exceed the value of the premises
ordered to be closed, and submit proof satisfactory to the trial court
that the nuisance has been abated and will not be created, maintained
or permitted during such period of time as the premises have been
directed to be closed by the order of the trial court, then the trial
court may suspend or vacate the provisions of the order that direct
the closing of the premises.
A closing directed by the trial court pursuant to this chapter
shall not constitute an act of possession, ownership or control by
the City of North Tonawanda of the closed premises.
A.
It shall be a misdemeanor for any person to use or occupy or to permit
any other person to use or occupy any premises or portion thereof
ordered closed by the trial court.
B.
Mutilation or removal of a posted order of the Building Inspector,
Chief of Police or trial court shall be punishable by a fine of not
more than $250, or by imprisonment not exceeding 15 days, or both,
provided that such order contains therein a notice of such penalty.
C.
Intentional disobedience or resistance to any provision of the orders
issued by the trial court pursuant to this chapter, in addition to
any other punishment prescribed by law, shall be punishable by a fine
of not more than $500 or by imprisonment not to exceed six months,
or both.
The Building Inspector or Chief of Police may promulgate rules
and regulations to carry out and give full effect to the provision
of this chapter.
No officers, agent or employee of the City of North Tonawanda,
New York, the County of Niagara or the Niagara County Drug Task Force
shall be personally liable for any damage resulting from any official
determination, order or action required or permitted in the discharge
of his or her duties under this chapter.
