[Ord. No. 36, 4-3-2002]
The following words, terms and phrases, when used in this division,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
PUBLIC NUISANCE
Includes, but shall not be limited to:
(1)
Any building, structure or real property used for the purpose
of illegal use, possession or distribution of a controlled substance
or marihuana (marijuana) as defined by the state Penal Law.
(2)
Any building, structure or real property used for the purposes
of prostitution as defined by the state Penal Law.
(3)
Any building, structure or real property used for purposes of
indecency, obscene performances and/or promotion of obscene material
as defined by the state Penal Law and this Code.
(4)
Any building, structure or real property used for purposes of
illegal gambling activity as defined in the state penal law.
(5)
Any building, structure or real property used for the purpose
of the commission of illegal possession, use or sale of firearms or
weapons as defined by the state Penal Law.
(6)
Any building, structure or real property used for the purpose
of illegal sale, manufacture or consumption of alcohol beverages as
defined by the state Alcohol Beverage Control Law.
(7)
Any building, structure or real property wherein there exists
or has occurred a criminal nuisance as defined by the state Penal
Law.
(8)
Any building, structure or real property used for purposes of
loitering as defined by the state Penal Law.
(9)
Any building, structure or real property wherein there exists
or has occurred a violation of this Code.
(10)
Any building, structure or real property wherein an occupant,
guest or business invitee commits criminal activities, including but
not limited to, assault, harassment or disorderly conduct, as said
criminal activities are defined by the state Penal Law.
[Ord. No. 36, 4-3-2002]
No owner, operator, manager, agent in control, tenant, lessee
or other occupier of a building, structure or real property shall
knowingly conduct, maintain, permit or allow the existence of a public
nuisance at the building, structure or real property.
[Ord. No. 36, 4-3-2002]
Notice by first class mail, or personal service, of activities
entailing a public nuisance to the property owner, operator, manager,
agent in control, tenant, lessee or other occupier of a building,
structure or real property shall be prima facie evidence of knowledge
of the public nuisance.
[Ord. No. 36, 4-3-2002]
The existence of two or more criminal convictions for any of the activities set forth in the definition of a public nuisance in Section
2-17-1 at any building, structure or real property within a two-year period prior to the commencement of a civil action shall be prima facie evidence of the existence of a public nuisance. A criminal conviction shall be defined as the entry of a plea of guilty to or a verdict of guilty for one or more counts set forth in an accusatory instrument.
[Ord. No. 36, 4-3-2002]
The existence of two or more incidents of the following activities
at any building, structure or real property within a one-year period
prior to the commencement of a civil action shall be prima facie evidence
of the existence of a public nuisance.
(1) Conviction for any of the activities set forth in the definition of a "public nuisance" in Section
2-17-1 occurring on or near the property.
(2) Arrest for any of the activities set forth in the definition of a "public nuisance" in Section
2-17-1 occurring on or near the property.
(3) Service of an accusatory instrument charging any of the activities set forth in the definition of a "public nuisance" in Section
2-17-1 occurring on or near the property.
(4) Service of a search warrant on the building, structure or real property
where controlled substances, marihuana (marijuana), and/or weapons
are seized.
(5) Finding of illegal controlled substances or illegal firearms or weapons
on the building, structure or real property.
(6) Investigative purchases of illegal controlled substances on the building,
structure or real property by law enforcement agencies or their agents.
[Ord. No. 36, 4-3-2002]
If, upon the trial of an action for a public nuisance or upon
a motion for summary judgment, a finding is made that defendants have
conducted, maintained, permitted or allowed a public nuisance, a penalty
may be awarded in an amount not to exceed $1,000 for each day it is
found that defendants conducted, maintained, permitted or allowed
the public nuisance after notice to abate had been given by the City.
Upon recovery, such penalty shall be paid into the General City Fund.
[Ord. No. 36, 4-3-2002]
Upon a motion or order to show cause from the Corporation Counsel
and pending an action for a permanent injunction, a preliminary injunction
enjoining the public nuisance may be granted for any of the relief
obtainable by a permanent injunction.
[Ord. No. 36, 4-3-2002]
Pending a motion or order to show cause for a preliminary injunction,
a temporary restraining order or a temporary closing order may be
granted, without notice to defendants, for any of the relief obtainable
by a permanent injunction.
[Ord. No. 36, 4-3-2002]
Whenever there is prima facie evidence of a public nuisance
at any building, structure or real property within the city, the Corporation
Counsel may initiate an administrative hearing.
(1) Service of notice. A notice of the hearing shall be served on all
owners of the building structure or real property and may also be
served on any known tenants or lessees or other occupiers of the building.
The notice shall be served in the manner required by New York State
Civil Practice Laws and Rules.
(2) Content of notice. The notice shall allege the facts constituting
the public nuisance. The notice shall further contain a time and place
for a hearing to be held before a panel.
(3) Hearing panel. The panel shall consist of a member to be appointed
by the chief Code Enforcement Officer, a member to be appointed by
the Chief of Police and a member to be appointed by the Fire Chief.
Each appointing authority shall be authorized to appoint himself/herself
or any member of his/her staff to the hearing panel.
(4) Hearing. At the time and place designated in the notice, the Corporation
Counsel or his/her designee shall present all relevant evidence as
to the existence of a public nuisance at the building, structure or
real property, and as to appropriate remedies. The owners of the building,
structure or real property, or their representatives, shall have the
right to cross-examine any witnesses presented by the Corporation
Counsel or his/her designee. The owners of the building, structure
or real property, or their representatives, may present any relevant
evidence in their defense. The Corporation Counsel, or his/her designee,
shall have the right to cross-examine any witnesses presented by the
owners of the building, structure or real property, or their representatives.
(5) Panel's finding and recommendation: Within five days of the hearing,
the panel shall provide a finding of fact to the Commissioner of Public
Safety, or, if there is no Commissioner of Public Safety, to the Mayor
or the Mayor's designee. The finding of fact shall state whether there
is prima facie evidence of the existence of a public nuisance at the
building, structure or real property. The panel shall further provide
a written recommendation of remedies to abate the public nuisance.
[Ord. No. 36, 4-3-2002]
The Commissioner of Public Safety, or, if there is no Commissioner
of Public Safety, the Mayor or the Mayor's designee, upon receipt
of a finding of fact and recommendation from the panel, shall have
the following powers in regards to the abatement of public nuisances:
(1) To suspend or revoke, for a period not to exceed one year, the certificate
of occupancy for the building, structure or real property.
(2) To order the closing of the building, structure or real property by the City Police Department, to the extent necessary to abate the nuisance, pursuant to the procedures set forth above in Section
2-17-9.