City of Kingston, NY Article III Administrative Remedies

§ 199-6 Procedures.

In addition to the enforcement procedures established under common law, New York State Civil Practice Law and Rules and this Code, the Corporation Counsel may initiate an administrative action seeking relief from a public nuisance. The following orders may be issued after notice and opportunity for a hearing:

A. An order authorizing the discontinuance of the specific activity at the premises where such public nuisance exists.

B. An order closing the premises to the extent necessary to abate the public nuisance.

C. An order directing the payment of a fine.

D. An order granting such other relief as the hearing panel recommends and the Mayor deems just and proper.

§ 199-7 Administrative hearing.

A. Service of notice. A notice of public nuisance shall be served on the owner and any other person in control of the premises wherein the public nuisance is being conducted, maintained or permitted. Such notice may also be served on a mortgagee of the premises. The notice shall be served upon an owner or person in control of the premises in the manner required by the New York State Civil Practice Law and Rules, 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 the court.

B. Content of notice. The notice of public nuisance and opportunity to be heard provided for in Subsection A of this section shall:

(1) Specify the activity or activities constituting the public nuisance and set a time and place for a hearing to be held before the hearing panel;

(2) Provide 30 days for elimination of the public nuisance;

(3) Inform the person served of his/her right to apply to attend and participate at such hearing before the hearing panel as provided in Subsection D of this section. Such application for attendance and participation must be made in writing and served upon the Corporation Counsel within 10 days of service of the notice of public nuisance;

(4) Inform the owner or person in control of the premises that within the expiration of five business days of the hearing or upon noncompliance with any written agreement reached at or before the hearing, the hearing panel shall act to obtain compliance as provided by this article; and

(5) Inform the owner or person in control of the premises of the obligation to post a copy of the notice of public nuisance within five days of service, in a conspicuous place, so that all of the premises' occupants shall have notice that the public nuisance is being conducted, maintained or permitted on the premises and that, upon expiration of 30 days after service of the notice, the hearing panel shall act to obtain compliance as provided in this article, including, but not limited to, closing the premises.

C. Hearing panel. The panel shall consist of a member of law enforcement appointed by the Chief of the Kingston Police Department, a member appointed by the Chief of the Kingston Fire Department and a member of the civilian community appointed by the Mayor.

D. Hearing. At the time and place designated in the notice, the Corporation Counsel shall present relevant evidence demonstrating the existence of the public nuisance at the premises and request appropriate remedies. The owner of the premises or his/her representatives shall have the right to examine such evidence and cross-examine any witnesses presented by the Corporation Counsel. The owner of the premises or his/her representative may present any relevant and admissible evidence in his/her defense. The Corporation Counsel shall have the right to examine such evidence and cross-examine any witnesses presented by the owner or his/her representative. The burden of proof to establish a public nuisance is a preponderance of evidence.

E. Within five business days of the hearing, the panel shall provide a finding of fact to the Mayor. The finding of fact shall state whether there is prima facie evidence of the existence of a public nuisance at the premises. The panel shall further provide a written recommendation of remedies to abate the public nuisance.

§ 199-8 Administrative orders.

A. The Mayor, upon receipt of a finding of fact and recommendation from the panel, shall have the following powers in furtherance of the abatement of public nuisances:

(1) To issue a decision and order suspending or revoking, for a period not to exceed one year, the certificate of occupancy for the premises.

(2) To issue a decision and order directing the closing of the premises by the Kingston Police Department and/or Sheriff, to the extent necessary to abate the nuisance, pursuant to the procedures set forth in § 199-9 of this chapter.

(3) To issue a decision and order directing the payment of a fine of no more than $250 for each day the public nuisance has been conducted, maintained or permitted. Upon recovery, such fine shall be paid into the general fund of the City of Kingston.

(4) To issue a decision and order that various measures be taken by the owner, mortgagee, tenant and/or lessee of the premises to the extent necessary to both abate the existing nuisance and ensure the prevention of future nuisance actions from occurring at or near the premises. These measures may include, but not be limited to, requiring the owner to modify and improve the usage and features of the premises; mandating compliance with all applicable building, housing and property maintenance codes and regulations pursuant to this Code and/or state law; and directing subsequent purchasers to comply with the provisions of any issued order of revocation or suspension for the certificate of occupancy, unless and until the subsequent purchaser appears before the hearing panel for the panel's further action.

B. The decision and order shall be served upon the owner, mortgagee, tenant and/or lessee of the premises in accordance with § 199-7A.

C. Nothing within this section shall limit the authority of the Corporation Counsel or Mayor to take such other and further actions under this Code or law of the State of New York deemed necessary to abate any existing public nuisance to the extent necessary to ensure the protection of the health, safety and welfare of the general public.

§ 199-9 Administrative closure of premises.

A. If the order directs the closing of the premises, the City Police Department and/or Sheriff shall serve the order upon defendants in the manner required by the New York State Civil Practice Laws and Rules for judgments and shall post a copy of the order upon one or more of the doors at entrances of the premises.

B. In addition, the City Police Department and/or Sheriff shall affix upon one or more of the doors at entrances of the premises or in another conspicuous place on the premises a printed notice stating "CLOSED BY ADMINISTRATIVE ORDER" in block lettering of sufficient size to be observed by anyone intending to enter the premises.

C. Mutilation or removal of such posted order or notice while it remains in force will be considered a separate violation under the New York State Penal Law and shall be punishable as a Class A misdemeanor.

D. The City Police Department and/or Sheriff may then command all persons present in the premises to vacate the premises forthwith. After the premises has been vacated, the City Police Department and or Sheriff may secure the premises.

E. The closing directed by the order shall be for such period as the hearing panel recommends and the Mayor directs, but in no event shall the closing be for a period of more than a year from the posting of the order.

F. A closing by the City Police Department and/or Sheriff shall not constitute an act of possession, ownership or control by the City.

§ 199-10 Vacating administrative or closing order.

An administrative or closing order shall be vacated, upon notice to the Corporation Counsel, if the owner or his/her representative shows by affidavit and such other proof as may be submitted to the hearing panel or Mayor that the public nuisance has been abated. An order vacating an administrative or closing order shall include a provision authorizing agencies of the City to periodically inspect the premises which is the subject of the order to ascertain whether the public nuisance has resumed.