[HISTORY: Adopted by the Board of Trustees of the Village
of Bath as indicated in article histories. Amendments noted where
applicable.]
[Adopted 11-21-2016 by L.L. No. 7-2016; amended in its entirety by 4-18-2022 by L.L. No. 2-2022]
The Village Board of Trustees finds that public nuisances exist
in the Village of Bath in the operation of certain establishments
and the use and occupation of property in flagrant and persistent
violation of state and chapters and ordinances, which nuisances substantially
and seriously interfere with the interest of the public in enhancing
the quality of life and community environment in the Village, and
in fostering and facilitating commerce, maintaining and improving
property values, and in preserving and protecting the public health,
safety and welfare. The Village Board of Trustees further finds that
the persistence of such activities and violations is detrimental to
the health, safety, and welfare of the people of the Village of Bath
and of the businesses thereof and the visitors thereto. It is the
purpose of the Village Board of Trustees to authorize and empower
the Code Enforcement Officer of the Village of Bath to impose sanctions
and penalties for such public nuisances, and such powers of the Code
Enforcement Officer 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 Village Board of Trustees further finds that the sanctions and
penalties that may be imposed by the Code Enforcement Officer pursuant
to this chapter constitute an additional and appropriate method of
law enforcement in response to the proliferation of the above-described
public nuisances. The sanctions and penalties are reasonable and necessary
in order to protect the health and safety of the people of the Village
and to promote the general welfare. The Village Board of Trustees
further determines that the potential sanctions and civil penalties
for maintaining a public nuisance under this article are significant
and as such call for the owners and other interested parties to be
placed on notice of specified unlawful activities occurring upon the
premises that may result in a finding of public nuisance.
As used in this chapter, the following terms shall have the
meanings indicated:
Any action performed at a property subject to the jurisdiction
of the Village Code by personnel of a law enforcement agency having
the police officer or peace officer powers as defined under the Criminal
Procedure Law.
For the purposes of this article, a "public nuisance" shall
mean:
A property that is subject to the jurisdiction of the Village
Code where such property is maintained in a condition that is either
unlawful in itself or under all the circumstances, poses an immediate
hazard to life or health of persons proximate thereto, or
A property where persons gather for purposes of engaging in
unlawful conduct, whether or not lawful conduct is otherwise performed
upon such property.
For purposes of this chapter, a public nuisance shall be presumed to exist wherever, through violations of any of the following provisions resulting from separate incidents at a building, erection or place, 12 or more points are accumulated within a period of six months or 18 or more points are accumulated within a period of 12 months, in accordance with the following point system. Where more than one violation occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation. For the purpose of this chapter, an "incident" will be defined as the execution of an enforcement action. For the avoidance of any doubt, points will not be assessed against a property unless the incident occurs there. For example, if a prostitution violation occurs, the assessment will be against the property wherein the prostitution occurred, not where the alleged violator lives. Further, the presumption created by this subsection shall be rebuttable by an interested party pursuant to a hearing and notice provisions under § 74A-6D of this article as established by clear and convincing evidence before a court of competent jurisdiction that such conditions did not exist upon the premises over the relevant time period.
A.
The following violation shall be assigned a point value of eight
points: § 265 of the Penal Law, Firearms and other dangerous
weapons.
B.
The following violations shall be assigned a point value of six points:
(1)
Article 220 of the Penal Law, Controlled Substances Offenses (except
if the charge is a B felony or above, it shall be eight points).
(3)
Article 225 of the Penal Law, Gambling Offenses.
(4)
Section 230.00 of the Penal Law, Prostitution.
(5)
Sections 165.40, 165.45, 165.50, 165.52 and 165.54 of the Penal Law,
Criminal possession of stolen property.
(6)
Section 123 of the Alcoholic Beverage Control Law.
(7)
Sections 260.20 and 260.21 of the Penal Law, Unlawfully dealing with
a child.
(8)
Section 263 of the Penal Law, Sexual Performance by a Child.
(9)
Section 415-a of the Vehicle and Traffic Law and § 86-5E of the Code of the Village of Bath (Vehicles).
(10)
Possession, use, sale, or offer for sale of any alcoholic beverage
in violation of Article 18 of the Tax Law or any cigarette or tobacco
products in violation of Article 20 of the Tax Law.
(11)
Article 158 of the Penal Law, Welfare Fraud.
(12)
Article 178 of the Penal Law, Criminal Diversion of Prescriptions.
C.
The following violations shall be assigned a point value of four
points:
(1)
Any violation of Chapter 3 of the Property Maintenance Code of New
York State (Exterior Property Areas).
D.
The following violations shall be assigned a point value of three
points:
(3)
Section 240.20 of the Penal Law (Disorderly Conduct).
(4)
Sections 240.25 and 240.26 of the Penal Law (Harassment).
(6)
Section 175.10 of the Penal Law (Falsifying business records).
(7)
Sections 240.45 and 240.46 of the Penal Law (Criminal Nuisance).
(8)
Sections 170.65 and 170.70 of the Penal Law (Forgery of or illegal
possession of a vehicle identification number).
(9)
Section 147 of the Social Services Law (Food stamp program fraud).
(10)
Article 26 of the Agriculture and Markets Law (Cruelty to animals).
For purposes of this chapter, a conviction for an offense in
a court of competent jurisdiction shall not be required to establish
that a specified violation of law has occurred at a building, erection,
or place. Instead, the Village shall be required to prove a specified
violation as prescribed under Criminal Procedure Law 70.20. However,
a conviction as defined and applied in accordance with the provisions
of § 1.20 of the Criminal Procedure Law, in any court of
competent jurisdiction, shall constitute prima facie proof of such
a violation of law. Conviction of an attempt to commit a violation
of any of the specified provisions shall be assessed an equivalent
number of points as a conviction for a violation of the specified
provision.
Upon a judicial determination of a public nuisance under the provision of this chapter and in addition to any other enforcement procedures established elsewhere, and in addition to any penalty, fine or sanction imposed by a court under this chapter or any other law or rule, the Code Enforcement Officer or his or her designee, after a judicial determination of a public nuisance under this chapter, shall be authorized to issue remedial orders, subject to the notice provisions of § 74A-6:
A.
To order the closing of the building, erection, or place to the extent
necessary to abate the nuisance, provided it poses an immediate hazard
to life or health;
B.
To suspend or revoke a certificate of use issued for such premises
to the extent necessary to abate the nuisance, but in no event for
a period of time longer than one year;
C.
To fine the owner of the building in an amount of no greater than
$200 per point accumulated; or
D.
Any combination of the above.
E.
Independent of the foregoing powers, the Code Enforcement Officer
is authorized to provide written notice, institute proceedings and
pursue remedies as set for under Real Property Actions and Proceedings
Law § 715 as the enforcement agency thereunder having the
enforcing duties of the provisions of this article.
A.
The Code Enforcement Officer shall make an initial assessment of points upon a standard form, upon receipt of information of probable cause of an offense set forth under § 74A-3 of this chapter from a law enforcement agency of an execution of a law enforcement action.
B.
Notice of points.
(2)
The standard form for making the initial assessment of points shall contain the contact information of the Code Enforcement Officer, reference to Chapter 74A of the Bath Village Code, the address of the property impacted, the date(s) of the execution of a law enforcement action, the nature of the offenses occurring upon the property and the specific initial assessment of points under this chapter.
(3)
In addition to those persons required to receive notice of the initial
assessment of points, such notice shall be provided to the law enforcement
agency that conducted the execution of a law enforcement action upon
the subject premises together with a direction to maintain and preserve
all documentation, including supporting depositions relating to the
execution of a law enforcement action thereupon.
C.
The purpose of the notice of the initial assessment of points is
to provide the responsible parties in the premises notice of the execution
of a law enforcement action at the subject property. Service of the
notice documents shall be maintained and preserved by the Code Enforcement
Officer in the normal course of business and it shall be the normal
course of business of the Code Enforcement Officer to make and keep
such records and it shall be a business duty of the Code Enforcement
Officer to make and keep such records for such period as prescribed
by law or rule.
D.
Upon the Code Enforcement Officer providing notice of initial assessment of points upon an owner and such other responsible person of a premises and the accrual of points exceeds the standard as established under § 74A-3, or any violation of § 74A-11, the Code Enforcement Officer is authorized to file an action in the Justice Court of the Village of Bath, or of such other Court as a Court of competent jurisdiction may direct, under the procedures as set forth under the Criminal Procedure Law for charging offenses as established under § 74A-11. Whereupon the Court shall make findings of facts under the definition of a public nuisance as defined in this chapter and as asserted in the filed information, conclusions of law together with any sanction, if the allegations of the information are sustained. Any proceeding conducted under this subsection shall be governed by the applicable provisions of the Criminal Procedure Law.
F.
Notice; hearing.
(1)
Upon points being assessed due to a violation, the Code Enforcement
Officer or his/her designee shall give, in writing, a notice of points
levied against a building, erection, or place wherein the violation
is being conducted, maintained, or permitted. Such notice shall be
given to an owner, lessor, lessee, or mortgagee of a building, erection,
or place wherein the violation is being conducted, maintained, or
permitted.
(2)
Prior to the issuance of orders under § 74A-5B, C, or D of this article by the Code Enforcement Officer or his/her designee, the Code Enforcement Officer or his/her designee shall give notice and opportunity for a hearing to the owner, lessor, lessee, or mortgagee of a building, erection, or place wherein the public nuisance is being conducted, maintained, or permitted; provided that any hearing held under this subsection shall be limited to the remediation of the conditions as set forth in the notice posted/served hereunder.
G.
Notice under § 74A-5B, C, or D and/or § 74A-6B of this article shall be served upon an owner pursuant to Article 3 of the Civil Practice Law and Rules, upon a lessor or lessee pursuant to § 735 of the Real Property Actions and Proceedings 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. Proceedings shall be commenced by service of the notice.
The owner of the property affected by the orders of the Code
Enforcement Officer or his/her designee shall be presumed to be the
person in whose name title to the real estate is recorded in the office
of the Steuben County Clerk.
An opportunity for a hearing for an order issued under § 74A-5B, C, or D shall be within 60 days after the occurrence of the most recent violation cited in the notice; provided that any hearing held under § 74A-5B, C, or D shall be limited to the remediation of the conditions as set forth in the notice posted/served hereunder.
[1]
Editor's Note: Former § 74A-9, Lack of knowledge
not a defense, was repealed 4-18-2022 by L.L. No. 2-2022.
C.
Where the Code Enforcement Officer or his/her designee closes a building, erection or place pursuant to § 74A-5A, such closing shall be for such period as the Code Enforcement Officer or his/her designee may direct, but in no event shall the closing be for a period of more than one year from the posting of the order pursuant to this section. If the owner, lessor, or lessee shall file a bond in an amount determined by the Code Enforcement Officer or his/her designee, but not exceeding the value of the property ordered to be closed, and submit proof satisfactory to the Code Enforcement Officer or his/her designee that the nuisance has been abated and will not again be created, maintained or permitted for such period of time as the building, erection or place has been directed to be closed by the order of the Code Enforcement Officer or his/her designee, then the Code Enforcement Officer or his/her designee may vacate the provisions of the order that direct the closing of the building, erection or place.
A.
It shall be a misdemeanor for any person to use or occupy any building, erection or place, or portion thereof, who has notice or has reason to know by reason of posting as set forth in § 74A-10A which is ordered closed by the Code Enforcement Officer or his/her designee pursuant to this chapter.
B.
Mutilation or removal of a posted order of the Code Enforcement Officer
or his/her designee shall be punishable by a fine of not to exceed
$250 or by imprisonment not exceeding 15 days, or both, provided such
order contains therein a notice of such penalty.
C.
A violation of this chapter constituting an offense of public nuisance
shall be a violation punishable by a fine not to exceed $50 per day
and/or imprisonment not to exceed 15 days.
The Code Enforcement Officer or his/her designee may promulgate
rules and regulations to carry out and give full effect to the provisions
of this chapter.
In the event that a court of competent jurisdiction holds that
any portion of this article is unlawful, illegal or otherwise unenforceable,
each and every other provision of this article shall remain in full
force and effect.
