[Added 10-24-2005 by L.L. No. 10-2005]
A.
In all civil and criminal prosecutions brought for
the enforcement of this Code's provisions with respect to the illegal
use of any building for residential purposes or the illegal residential
occupancy of any dwelling or dwelling unit by more families than the
number of families permitted for such dwelling or dwelling unit under
this Code, the following rebuttable presumptions shall apply:
(1)
That any detached dwelling or dwelling unit
which maintains more than one mailbox or mail receptacle, more than
one gas meter, more than one electric meter, and/or more than one
water meter is being used as the residence of two or more families.
(2)
That any detached dwelling or dwelling unit
which maintains more than two mailboxes or mail receptacles, more
than two gas meters, more than two electric meters and/or more than
two water meters is being used as the residence of three or more families.
(3)
That any detached dwelling or dwelling unit
which maintains any entrance or entrances thereto, which entrance
or entrances have not been set forth on any plans approved by and
on file with the Village Building Department, is being used as the
residence of two or more families.
(4)
That any detached dwelling or dwelling unit
which maintains any third or additional entrances thereto, which entrance
or entrances have not been set forth on any plans approved by and
on file with the Village Building Department, is being used as the
residence of three or more families.
(5)
That any building which has been advertised
in any newspapers, magazines, or advertising publications as being
available for sale or rent for residential purposes, in whole or in
part, which advertisement expressly or implicitly provides that such
building or the dwellings or dwelling units therein contain rooms
for rent, contain more than one separate dwelling living unit, or
may be occupied by more than one separate family, is being used as
a dwelling containing the number of rooms for rent, dwelling units,
or families stated or implied in such advertisement.
(6)
That any dwelling or dwelling unit which maintains
two or more doorbells is being used as a dwelling for the same number
of families as there are doorbells.
(7)
That any single-family dwelling or dwelling
unit at which there are the following is being used for two or more
families:
(a)
Permanent partitions or internal doors which
have not been set forth on any plans approved by and on file with
the Village Building Department, which may serve to bar access between
segregated portions of the dwelling, including but not limited to
bedrooms, or the inability of any occupant or person in possession
thereof to have unimpeded and/or lawful access to all parts of the
dwelling unit; and/or
(b)
Two or more kitchens which have not been set
forth on any plans approved by and on file with the Village Building
Department, each containing one or more of the following: a range,
oven, microwave, or other similar device customarily used for cooking
or preparation of foods.
(8)
That any two-family dwelling unit at which there
are the following is being used for three or more families:
(a)
Permanent partitions or internal doors which
have not been set forth on any plans approved by and on file with
the Village Building Department, which may serve to bar access between
three or more segregated portions of the dwelling, including but not
limited to bedrooms; and/or
(b)
Three or more kitchens which have not been set
forth on any plans approved by and on file with the Village Building
Department, each containing one or more of the following: a range,
oven, microwave, or other similar device customarily used for cooking
or preparation of foods.
B.
The rebuttal of the aforesaid presumptions shall be
an affirmative defense by the defendant that, notwithstanding the
existence of such conditions, once such conditions have proven to
the court, the subject building is not being used as a dwelling or
the subject dwelling is not being used for more families than permitted
under this Code.
C.
A person charged with a violation of this Code as
described herein may demand an inspection by the Village Building
Department of the subject building or dwelling to rebut such presumption.
Such demand shall be in writing addressed to the Village Building
Department. The Building Department inspector shall prepare a report
of the findings of the inspection together with photographs, if appropriate.
A.
Notwithstanding any provision of this Code inconsistent
herewith, for each code violation involving an illegal residential
occupancy or an illegal over-occupancy of a dwelling or dwelling unit,
the owner and any person who is in charge of the subject building,
dwelling, or dwelling unit at the time of the violation shall be liable
to a fine of not more than $3,500 for the first violation; for a second
and any subsequent violation, the fine shall be not less than $5,000.
B.
Alternative sentence.
(1)
If a person, including any corporation, partnership,
limited-liability company, or any other legal entity has gained money
or property through the commission of any violation involving an illegal
residential occupancy or an illegal over-occupancy of a dwelling,
then, upon conviction thereof, the court, in lieu of imposing the
fine authorized for the offense under this Code, may sentence the
defendant to pay an amount, fixed by the court, not exceeding double
the amount of the defendant's gain from the commission of the offense,
as such gain is reasonably determined by the court.
(2)
The intent of § 176-211B is, pursuant to the authority granted to villages by Municipal Home Rule Law § 10(1)(ii)(e)(3), to supersede Subdivisions 5 and 6 of § 80.05 of the Penal Law, to the extent necessary, to define "persons" to include corporations, partnerships, limited-liability companies, and all other legal entities.
C.
Each day that a violation continues to exist shall
constitute a separate and distinct violation.
