[HISTORY: Adopted by the Town Board of the Town of Smithtown 11-5-2002 by L.L. No.
6-2002. Amendments noted where applicable.]
This chapter shall be known as the "Public Nuisance Abatement
Law of the Town of Smithtown."
The Town Board hereby finds that buildings and properties used
for illegal activities within the Town of Smithtown as set forth herein
have a devastating impact on the surrounding communities, including
the promotion of other illegal activities, the threat to the public
health, safety and welfare and the interference in the community's
quality of life. The Town Board finds and determines that the existence
of these activities constitutes a public nuisance that endangers the
health, safety and general welfare of the people of the Town of Smithtown
and the businesses thereof and visitors thereto. Therefore, this chapter
has been prepared and will be adopted in consideration of the standardization
of procedures for securing legal and equitable remedies, and to strengthen
existing laws so as to effectively prevent buildings, residences,
premises and real estate within the Town of Smithtown from being used
in such a manner as to constitute a "public nuisance."
As used in this chapter, the following terms shall have the
meanings indicated:
Any conduct or occurrence that is in violation of the following
parts of the New York State Penal Law, as modified or amended:
Article 220 (controlled substances).
Article 230 (prostitution).
Article 225 (gambling).
Sections 221.40, 221.45, 221.50 and 221.55 (criminal sale of
marijuana in the fourth degree through first degree).
Sections 165.45, 165.50, 165.52 and 165.54 (criminal possession
of stolen property in the fourth degree through first degree).
Sections 165.09, 165.10 (auto stripping in the second and first
degrees).
Section 170.65 (forgery of a vehicle identification number).
Section 170.70 (illegal possession of a vehicle identification
number plate).
Any building, structure or place used for the commission of
a criminal nuisance as that term is defined in § 240.45
of the Penal Law.
Any intentional conduct or occurrence that is in willful violation
of §§ 65, 65-a, 82, 123 or 126 of the New York Alcoholic
Beverage Control Law and § 260.20 of the New York Penal
Law.
Any building, structure, or place used for the purpose of conducting
any business, activity or enterprise which is not licensed as required
by any federal, state, county or local enactment.
Any criminal conduct which creates or results in the maintaining
of a condition which endangers the health, safety or welfare of the
public or that creates or results in the maintenance of any premises
or place where persons gather for the purpose of engaging in criminal
conduct.
Any building, residence, premises, structure, place or lot,
developed or undeveloped, vacant or occupied, where an owner or person
in charge thereof has been given written notice that a search warrant
has been executed, an arrest and/or conviction for prohibited conduct
as defined herein has taken place or evidence of prohibited conduct
has been seized at said location and within 12 months of that arrest,
conviction, seizure and/or warrant executed at such location for prohibited
conduct for which the owner or person in charge thereof is again notified
in writing.
It is a violation of this chapter for the owner or his/her agent,
the occupant or person in charge of any building, residence, premises,
structure, place or lot, developed or undeveloped, vacant or occupied,
to allow, cause, own, lease, permit, facilitate or maintain the creation
or occurrence of a public nuisance.
A.
Notice that prohibited conduct has occurred at a location shall be
served by personal service upon the owner or person in charge of the
affected building, structure, place or lot; or if such person cannot
reasonably be found, by mailing said owner such notice by certified
mail, return receipt requested to the last known address of same as
shown by the records of the Assessor of the Town of Smithtown and
by securely affixing a copy of such notice at the affected location.
B.
The notice described herein shall contain the following:
(1)
A statement of the date or dates upon which the prohibited conduct
occurred at the property;
(2)
The nature of the prohibited conduct and a directive that such conduct
be abated within five days of receipt of said notice;
(3)
A copy of the chapter and notice that a second occurrence of the
prohibited conduct within 12 months of the first arrest, conviction,
seizure and/or warrant being executed may result in action being taken
by the Town pursuant to this chapter.
A.
In any action or proceeding instituted pursuant to this chapter,
the person in whose name ownership of the real property affected by
such action is recorded in the office of the Assessor shall be presumed
to be the owner thereof.
B.
Whenever there is evidence that a person was the manager, operator,
supervisor or in any other way in charge of the premises at the time
a public nuisance exists because prohibited conduct is being conducted,
maintained or permitted, such evidence shall be presumptive that such
person is or was an agent of the property owner.
A.
A person who violates any provision of this chapter shall have committed
a misdemeanor punishable by a fine of up to $500 or imprisonment for
up to one year, or both, for a conviction of a first offense, and
a fine of up to $1,000 or imprisonment for up to one year, or both,
for a conviction of a second and each subsequent offense. A separate
violation shall be deemed committed upon each day during or upon which
a violation of this chapter occurs or continues.
B.
Upon a second or subsequent occurrence or prohibited conduct occurring
within 12 months of the first offense, the Town Board may declare
such public nuisance to be an immediate and substantial threat to
the health, safety and welfare of the residents of the Town of Smithtown
and visitors thereto in accordance with the following requirements:
(1)
The Town Board may conduct a public hearing to consider the prohibited
conduct occurring within a building, residence, premises, structure,
place or lot, as well as any other information it deems relevant in
determining whether the prohibited conduct is to be deemed a public
nuisance.
(2)
Notice of the public hearing herein shall be in writing and shall
be served not less than 10 days prior to the date of the hearing to
the owner, lessee, or other person or legal entity in control of the
building, residence, premises, structure, place or lot in question
in the same manner as service of a summons is authorized pursuant
to the Civil Practice Law and Rules. Such notice shall be posted at
the subject property at least 10 days prior to the public hearing
and shall be published in an official Town newspaper at least seven
days prior to the public hearing.
(3)
In the event the Town Board finds such location to be an immediate
and substantial threat to the health, safety and welfare of the public,
the Town Board may immediately authorize said location to be physically
boarded up and secured from further occupancy for a period of up to
one year, and direct that a sign be posted declaring that occupancy
thereof is prohibited for such time as directed by the Town Board.
The expense related to boarding up the location and the cost of insurance
indemnifying the Town of Smithtown, its employees and agents against
any loss arising from injuries to persons or property shall be assessed
against the real property, and the expense shall constitute a lien
and charge on the real property upon which it is levied until paid
or otherwise satisfied or discharged and shall, be collected in the
same manner or other authorized manner and at the same time as other
Town charges.
(4)
Provided that the requisite finding is made pursuant to § 222-7B(3) of this chapter, the Town Board may authorize the Town Attorney to institute any and all actions or proceedings to enjoin, restrain, correct, prevent or abate the public nuisance; to seek damages and any civil penalties in addition to and not in lieu of any criminal prosecution or penalty; and for seizure and forfeiture of property as well as any other available equitable remedies.
(5)
In the event the Town Board authorizes any location to be physically
boarded up and secured from further occupancy as provided for herein,
the Town Attorney may apply to a court of competent jurisdiction for
appointment of a temporary receiver to manage, operate and bring the
building, residence, premises, structure, place or lot into compliance
with the Smithtown Town Code during the pendency of any action or
proceeding. The temporary receiver shall have such powers as are enumerated
in Article 64 of the Civil Practice Law and Rules.
The provisions of this chapter may be enforced by the Director
of Public Safety or his designated representatives or agents and the
Suffolk County Police Department.
This chapter shall take effect upon filing with the Secretary
of State of the State of New York.
