[Adopted 11-14-2011]
All public nuisance proceedings brought under Hornell City Code §§ 201-1 through 201-12 (hereafter, Hornell City Code Chapter 201, Article I) shall be commenced by service of a notice of charges on the owner, lessor, lessee and mortgagee of a building, erection or place (hereinafter called "respondent(s)"), wherein the public nuisance is being conducted, maintained or permitted.
A.
The owner or managing agent, mortgagee, and the lessor and lessee of a building, erection, or place, if known, shall be given written notice of incidents occurring thereat which constitute a public nuisance as defined in Hornell City Code Chapter 201, Article I. The notice shall set forth a description of the nuisance act; the section of law, if any, violated; the date of violation; and the address at which the violation occurred.
B.
The notice shall further state that Hornell City Code Chapter 201, Article I authorizes the Board of Public Safety's designee to order, after notice and opportunity for a hearing, certain actions to abate public nuisances, including ordering suspension or closure of the business and/or the premises; suspension or revocation of the certificate of use or occupational license or permit issued by the City; suspension or revocation of the right to secure a certificate of use; or any combination of the above.
C.
The notice shall further state that the respondents have 10 days
from the date of receipt of this notice to demand a hearing and to
serve an answer upon the City Attorney.
D.
Service of the notice of charges shall be made pursuant to Civil
Practice Law and Rules § 2103(b) upon everyone, but service
shall be made upon an owner pursuant to Article 3 of the Civil Practice
Law and Rules; the lessor or lessee pursuant to § 735 of
the Real Property Actions and Proceedings Law; the mortgagee by means
of certified mail, return receipt requested, sent to the mortgagee's
last known address.
A.
A notice of hearing shall be served in every proceeding where a respondent
has filed an answer and demand for a hearing in conformance with these
rules and regulations. Appropriate neighborhood interests shall also
be notified of the proceeding and invited to provide information regarding
the subject properties.
B.
Service. Service shall be made at least 12 days before the scheduled
hearing, Service shall be complete immediately upon delivery, mailing
or posting. Service shall be accomplished by priority mail with delivery
confirmation mail receipt to each individual's last known residence
or business address unless the respondent is represented by counsel
whereby service shall be on the respondent's attorney at the
address listed on the answer.
C.
Notice.
(1)
A notice of hearing shall contain the name and address of the owner, lessor, lessee and mortgagee, the address of the building, erection or place where the public nuisance is being conducted, a scheduled time and place for the hearing and the identity of the hearing officer appointed to preside over the hearing. The notice shall cite the subsection of Hornell City Code § 201-3 being violated and shall contain a short and plain statement of the violation(s). It shall also list the dates of the violation and the specific section of the law upon which they were predicated. The notice shall also indicate the possible penalties and sanctions for violation(s) and a warning that failure to appear may result in an order closing the building, erection or place. The notice shall also include a statement that the respondent has a right to be represented by counsel, to cross-examine witnesses and to present witnesses and evidence on his or her behalf.
(2)
The notice shall further state that a prehearing conference will
be held, the date and place for the conference, the duty of all parties
to disclose all evidence that they intend to introduce at the hearing
and the obligation to consider measures to expedite the disposition
of the proceedings. The notice shall further contain a statement that
any party who unreasonably denies or refuses to admit a fact, authenticate
a document or exchange witness lists or proposed exhibits will be
precluded from denying the fact, or denying the authenticity or accuracy
of the document or from introducing the exhibit or the testimony of
the witnesses or objecting to the introduction of the exhibit or the
testimony of witnesses.
A.
Prehearing conference. A prehearing conference will be held at least
seven days in advance of the hearing date at which time each party
must disclose the evidence that the party intends to introduce at
the hearing, including documentary evidence and identification of
witnesses, and consider:
(1)
Simplification of the issues;
(2)
Amendments to any pleadings, notices or replies for purposes of clarification;
(3)
Stipulations, admissions of fact, contents or authenticity of documents,
or the accuracy of any photocopy or reproduction intended to be introduced
at the hearing;
(4)
Limitations on the number of witnesses; and
(5)
Other matters which would expedite the disposition of the proceedings.
B.
Witnesses and evidence precluded. Any party who unreasonably denies
or refuses to admit a fact, authenticate a document or exchange witness
lists or proposed exhibits will be precluded from denying the fact,
or denying the authenticity or accuracy of the document or from introducing
the exhibit or the testimony of the witnesses or objecting to the
introduction of the exhibit or the testimony of witnesses.
A.
Designation of. The hearing will be conducted by an independent hearing
officer who is an attorney chosen by the Board of Public Safety for
that purpose and who has not been involved in any way with the matter,
except that hearing officers can conduct a rehearing resulting from
a motion to vacate a default.
C.
Powers. The hearing officer shall have all powers necessary to this
end, including the powers to:
(1)
Administer oaths and affirmations;
(2)
Rule upon the admission of evidence and motions, consistent with
the provisions of this section;
(3)
Issue subpoenas requiring the attendance of witnesses and the production
of books, documents and other records;
(4)
Rule upon requests for adjournments and continuances consistent with
the provisions of this section;
(5)
Admit or exclude evidence, including the exclusion or protection
of evidence on grounds of privilege or confidentiality;
(6)
Preclude irrelevant or unduly repetitious, tangential, speculative
testimony or argument; and
(7)
Do any other act or take any other measure consistent with the provisions
of this section necessary for the maintenance of order and to ensure
the efficient and fair conduct of the hearing.
A.
Declaring a default. Upon respondent(s)' failure to answer and demand a hearing or to appear at the prehearing conference or at the hearing or any adjournment thereof, respondent(s) will be deemed to have pleaded no contest and an order assessing any of the penalties set forth in Hornell City Code Chapter 201, Article I may be issued. In such an event, the order shall not be issued unless the Board of Public Safety is satisfied that the notice of charges and/or a notice of hearing was duly served and that the evidence offered in support of the penalties constitutes a public nuisance as defined in Hornell City Code Chapter 201, Article I.
B.
Application to vacate a default after answer is served and hearing
demanded. An application for a hearing and stay of a default may be
made within 10 days of the posting of an order imposing penalties
on the affected building, erection or place, or mailing of a copy
of the hearing officer's decision, whichever is later. Such application
shall be made to the Board of Public Safety and shall be granted upon
a showing of good cause.
A.
Public hearing. Hearings shall be generally open to the public except
that if either party has shown good cause, the hearing officer may
exclude the public from a particular hearing or portion of a hearing.
B.
Representation of the Board of Public Safety. The City Attorney shall
present the evidence supporting the existence of a public nuisance.
C.
Representation of the respondents.
(1)
Any person who is entitled to notice pursuant to this rule may appear
and be heard in person or by duly appointed representative and may
produce, under oath, evidence relevant and material to the charges.
(2)
A respondent may be represented by an attorney who is a member in
good standing of the Bar of the State of New York.
D.
Adjournments.
(1)
No application for adjournment of a hearing shall be granted except
for good cause shown, and if such adjournment is sought upon the grounds
that the respondents' attorney is actually engaged in a court
of record, an affidavit of actual engagement by such attorney must
be presented.
(2)
Upon granting any adjournment, the hearing officer may direct that
the matter is set down peremptorily against the respondent(s), in
which event the respondent(s) shall be notified that there shall be
no further entitlement to any adjournment.
E.
Withdrawal of hearing request. A hearing request may be deemed to
have been withdrawn only under the following circumstances:
F.
Record. All testimony shall be made under oath, and a verbatim record
of the proceeding shall be made by stenographic transcription. Typewritten
copies thereof may be ordered by the parties at their own expense.
G.
Amendment of the charges set forth in the notice of hearing. The
hearing officer or the attorney for the City may amend the charges
set forth in the notice of hearing at any time before the close of
the hearing or prior to a determination by the Board of Public Safety.
If a respondent requests an adjournment based upon such amendment,
the hearing officer may, in his discretion, grant such adjournment
in the interest of justice when a party to such proceeding was surprised
by such amendment without fault on his part.
H.
Official notice.
(1)
Facts not subject to reasonable dispute. The hearing officer or the
Board of Public Safety may take official notice of a fact not subject
to reasonable dispute if it either is generally known or can be accurately
and readily verified in a generally accepted reference prior to or
following the close of the hearing record.
(2)
Procedure. If the hearing officer or Board of Public Safety intends
to take official notice of a material fact which does not appear in
the hearing record and of which judicial notice could not be taken,
every party must be given notice and an opportunity to dispute the
fact and its materiality.
I.
Stipulation of facts. Prior to the hearing, the parties shall meet
to determine and agree by stipulation what, if any, facts involved
in the proceedings are not in dispute. Such stipulation shall be duly
noted on the record and become part of the record. The attorney of
record representing a party may enter into such a stipulation on behalf
of that party.
J.
Consent orders.
(1)
At any time, the Board of Public Safety may enter into a consent
order with a respondent, whereby the latter agrees to discontinue
the nuisance acts or practices and provide such other further relief
to which the respondent(s) may agree.
(2)
Such consent order shall be admissible as evidence to provide the
basis for a finding of fact in any subsequent proceeding brought by
the Board of Public Safety against such respondent(s) involving the
same or similar violation(s).
K.
Discovery. There shall be no formal discovery procedure applicable
to adjudicatory proceedings. Reasonable demands for discovery shall
be complied with by the parties and objections thereto shall be timely
made to the hearing officer.
L.
Subpoenas. Any person desiring to subpoena a witness, document or
other evidence may do so in the manner provided for in the CPLR.
M.
Motions.
(1)
Must be in writing. All motions and requests prior to the hearing
shall be submitted in writing to the hearing officer. Copies of motion
papers shall be served upon all parties. Motions made during the course
of a hearing may be stated orally and shall be made a part of the
record.
(2)
Ruling on the motions. The hearing officer shall rule upon all motions
and requests prior to the submission of his report to the Board of
Public Safety. The Board of Public Safety shall rule upon all motions
submitted after receipt of the hearing officer's report.
N.
Evidence. All parties have the right to call witnesses, to conduct
examinations, including cross-examination, to present evidence, and
to make objections, motions and arguments.
(1)
All evidence submitted must be relevant. Irrelevant and unduly repetitious
testimony and cross-examination will be excluded.
(2)
Technical rules of evidence followed in a court of law will not be
followed, but evidence must be relevant and material.
(3)
Hearsay evidence may be admitted if a reasonable degree of reliability
is shown.
(4)
Evidence otherwise relevant may be excluded if its value as proof
is substantially outweighed by a potential for unfair prejudice, confusion
of the issues, undue delay, waste of time or needless presentation
of repetitious or duplicate evidence.
(5)
Where part of a document is offered as evidence by one party, any
party may offer the entire document as evidence.
(6)
Each witness must be sworn or make an affirmation before testifying.
Opening, closing and other unsworn statements are not evidence, and
they will be considered as arguments bearing on evidence.
(7)
The burden of proof to sustain a motion will be on the party making
the motion.
(8)
All decisions, determinations or orders must be made upon consideration
of the entire record.
(9)
Certificate shall constitute conclusive evidence of a violation.
Police reports and accusatory instruments and supporting depositions
concerning such violation shall be admitted as prima facie evidence
of the information contained therein, which evidence may be overcome
by other credible evidence.
O.
Burden of proof. No public nuisance may be established except upon
proof by a preponderance of the credible evidence. The municipal attorney
has the burden of proof in establishing that a public nuisance exists
at the cited premises, but the proponent of any factual proposition
will be required to sustain the burden of proof with respect thereto.
P.
Order of events. The hearing officer will have discretion to adjust
the order of events and establish procedures to promote the conduct
of a fair and efficient hearing. In general, the order of events at
a hearing shall be as follows:
(1)
Formal opening. The hearing officer will convene the hearing by opening
the record, identifying the issues involved and making appropriate
procedural announcements as necessary.
(2)
Noting appearances. The hearing officer will call the name of the
person who has requested the hearing and note the appearance of counsel,
if any.
(3)
Opening statements. Prior to the commencement of the evidentiary
hearing, each party may offer a brief opening statement of position
on the issues in dispute.
(4)
Admission of evidence. The City of Hornell will present its direct
case first. The respondent(s) will then present its case. All parties
will have an opportunity to cross-examine the opposing party's
witnesses. Evidence will be confined to that which is relevant to
the issues identified by the hearing officer and disclosed at the
prehearing conference.
(5)
Closing statements and briefs. Closing statements of position will
be taken in the same manner as opening statements. At the concluding
session of the hearing, the hearing officer will determine whether
to allow the submission of written post-hearing briefs and proposed
findings of fact. The hearing record will be officially closed upon
the receipt of additional technical data or other material agreed
at the hearing to be made available after the hearing, or the submission
of briefs and reply briefs, proposed findings of fact, memoranda,
and exceptions, if any, by the various parties, whichever occurs later.
Q.
Reopening of the hearing. At any time prior to issuing the final
decision, the Board of Public Safety or the hearing officer may direct
that the hearing record be reopened. This may be done to secure additional
information or data or to consider significant new evidence.
R.
Recording of the hearing is prohibited. Televising of a hearing for
rebroadcast is prohibited pursuant to § 52 of the Civil
Rights Law.
Within 30 days of closing of the hearing, the hearing officer
shall file a report and a complete record of the hearing.
A.
The report. The hearing officer's report shall include a statement:
(1)
Of the charges against the respondent(s);
(2)
Summarizing each respondent's response to the charges;
(3)
Of the facts recommended with specific references to principal supporting
items in the record;
(4)
Of the conclusions recommended, as well as the reasons or basis therefor,
and whether the evidence sustained the charges.
B.
Service of the report. A copy of such report shall be served on each
of the respondents or their attorneys, if so represented. The report,
when served, shall be accompanied by a statement in writing advising
that the recipient may controvert any of the findings contained therein
within seven days of the date of the notice by written submission
to the Board of Public Safety and all parties.
C.
Filing of the record. The record, which the hearing officer shall
refer to the Board of Public Safety after the hearing, includes:
After receipt of the record and the hearing officer's report,
the Board of Public Safety shall approve, modify or reject the hearing
officer's report and thereby make a final determination based
upon the entire record and issue an order consistent thereto.
A.
Content of decision. The decision will be in writing and shall consist
of two parts:
(1)
The final determination, which describes the issues, recites the
relevant facts and pertinent provisions of the law and codes, makes
appropriate findings, and states the reasons for the determinations;
and
B.
Service. A copy of the final determination and order shall be mailed
to the respondent(s) or its attorneys, if represented by counsel,
together with notice of right to judicial review in accordance with
Article 78 of the Civil Practice Law and Rules. Orders of the Board
of Public Safety shall also be posted at the building, erection or
place where the public nuisance exists.
