[Adopted 11-15-2010]
The Council finds that public nuisances exist in the City of
Hornell in the operation of certain establishments and the use and
occupation of property in flagrant and persistent violation of state
and local laws 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 City, and in fostering and
facilitating commerce, maintaining and improving property values,
and in preserving and protecting the public health, safety and welfare.
The Council further finds that the persistence of such activities
and violations is detrimental to the health, safety, and welfare of
the people of the City of Hornell and of the businesses thereof and
the visitors thereto. It is the purpose of the Council to authorize
and empower the Board of Public Safety to impose sanctions and penalties
for such public nuisances, and such powers of the Board of Public
Safety 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 Council
further finds that the sanctions and penalties that may be imposed
by the Board of Public Safety pursuant to this article 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 City and to promote the
general welfare.
For purposes of this article, a public nuisance shall be deemed
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 article, an "incident" will be defined as
the execution of an enforcement action.
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).
(2)
Article 221 of the Penal Law, Offenses Involving Marijuana (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, Vehicle dismantlers.
(10)
Possession, use, sale, or offer for sale of any alcoholic beverage
in violation of Article 18 of the Tax Law or of 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 Prescription
Medications and Prescriptions.
C.
D.
The following violations shall be assigned a point value of three
points,
(5)
Suffering or permitting the premises to become disorderly, including
suffering or permitting fighting or lewdness.
(6)
Section 175.10 of the Penal Law, Falsifying business records.
(7)
Sections 170.65 and 170.70 of the Penal Law, forgery of or illegal
possession of a vehicle identification number.
(8)
Section 147 of the Social Services Law, food stamp program fraud.
(9)
Article 26 of the Agriculture and Markets Law, cruelty to animals.
For purposes of this article, 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 City shall be required to prove a specified
violation by a preponderance of the evidence. 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 conclusive proof of such a violation of law. Conviction
of an attempt to commit a violation of any of the specified provisions
shall be equivalent to a conviction for a violation of the specified
provision.
In addition to any other enforcement procedures established
elsewhere, the Board of Public Safety or its designee, after notice
and opportunity for a hearing with respect to a public nuisance, shall
be authorized:
A.
To order the closing of the building, erection, or place to the extent
necessary to abate the nuisance;
B.
To suspend for a period not to exceed six months or revoke for a
period of one year a certificate of use issued for such premises,
and to prevent the operator from obtaining a new certificate of use
for another location for the period of suspension or revocation;
C.
To suspend for a period not to exceed six months or revoke for a
period of one year any occupational license or permit issued by the
City related to the conduct of a business or trade at the premises,
which suspension or revocation shall also apply to any other locations
operated by the holder for which the license or permit is required;
or
D.
Any combination of the above.
A.
Prior to the issuance of orders by the Board of Public Safety or
its designee pursuant to this article, the Board of Public Safety
or its 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.
B.
Notice 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 Board
of Public Safety or its 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 shall be within 60 days after the
occurrence of the most recent violation cited in the notice.
The lack of knowledge of, acquiescence or participation in or
responsibility for a public nuisance on the part of the owners, lessors,
lessees, mortgagees and all those persons in possession or having
charge of the property as agent or otherwise, or having any interest
in the property, real or personal, used in conducting or maintaining
the public nuisance, shall not be a defense by such owners, lessors
and lessees, mortgagees, and such other persons.
A.
Orders of the Board of Public Safety or its designee issued pursuant
to this article shall be posted at the building, erection or place
where a public nuisance exists or is occurring in violation of law
and shall be mailed to the owner of record thereof within one business
day of the posting.
B.
Five business days after the posting of an order issued pursuant
to this section and upon the written directive of the Board of Public
Safety or its designee, officers of the City of Hornell Police Department
are authorized to act upon and enforce such orders,
C.
Where the Board of Public Safety or its designee closes a building,
erection or place pursuant to this article, such closing shall be
for such period as the Board of Public Safety or its 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 Board of Public Safety or its designee, but not exceeding the
value of the property ordered to be closed, and submit proof satisfactory
to the Board of Public Safety or its 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 Board of Public Safety or
its designee, then the Board of Public Safety or its designee may
vacate the provisions of the order that direct the closing of the
building, erection or place.
D.
A closing directed by the Board of Public Safety or its designee
pursuant to this article shall not constitute an act of possession,
ownership, or control by the City of the closed premises.
A.
It shall be a misdemeanor for any person to use or occupy any building,
erection or place, or portion thereof, ordered closed by the Board
of Public Safety or its designee pursuant to this article.
B.
Mutilation or removal of a posted order of the Board of Public Safety
or its designee shall be punishable by a fine of not less than $250
or by imprisonment not exceeding 15 days, or both, provided such order
contains therein a notice of such penalty.
C.
Intentional disobedience or disregard of any provision or orders
issued by the Board of Public Safety or its designee pursuant to this
article, in addition to any other punishment prescribed by law, shall
be punishable by a fine of not more than $1,000 or by imprisonment
not to exceed six months, or both.
The Board of Public Safety or its designee shall promulgate
rules and regulations to carry out and give full effect to the provisions
of this article.
