[Adopted 9-28-2010 by L.L. No. 5-2010[1]]
[1]
Editor's Note: This local law also repealed former Art.
VI, Public Nuisances, adopted 11-26-1985 by L.L. No. 17-1985.
It is the finding of this City Council that public nuisances
exist in the City of Yonkers in the operation of certain establishments
and the use of property in flagrant violation of the penal laws relating
to controlled substances, dangerous drugs, prostitution, stolen property
and illegal use or possession of weapons, as well as other provisions
of state and local law, all of which substantially and seriously interfere
with the interests of the public in the quality of life and total
community environment, commerce in the City, property values and the
public health, safety and welfare. The City Council further finds
that the occurrence of such activities and violations is detrimental
to the health, safety and welfare of the City of Yonkers and of the
businesses thereof and visitors thereto. It is the purpose of this
article to authorize and empower the Police Commissioner to impose
sanctions and penalties for such public nuisances, and such powers
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 other laws. The City Council further
finds that the sanctions and penalties imposed by the Commissioner
pursuant to this article constitute an additional and appropriate
method of law enforcement in response to the proliferation of the
above-described public nuisances. These sanctions and penalties are
reasonable and necessary in order to protect the health and safety
of the people of the City of Yonkers and to promote the general welfare.
Unless otherwise expressly stated, the following terms shall,
for the purpose this article, have the meanings indicated:
The Commissioner of the Police Department, or his or her
designee.
The person or entity who is listed as the mortgagee on any
unsatisfied or otherwise open mortgage on the premises recorded in
the Office of the Westchester County Clerk.
Those shown to be the owner or owners on the records of the
City of Yonkers, Department of Assessment, those identified as the
owners or owners of the building or whose name is listed on any document
describing him, her, them or some other entity as owner, recorded
in the office of the Westchester County Clerk.
The building, place or property whereon a public nuisance
is being conducted or exists.
For purposes of this article, a public nuisance shall be deemed
to exist whenever, through violations of any of the following provisions
resulting from separate incidents occurring at or predicated at events,
circumstances or activities occurring on the premises, 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. The following
violations shall be assigned the point value indicated:
Article 220 of the Penal Law (Controlled Substances Offenses)
or a plea to a lesser included offense thereunder: six points.
Article 221 of the Penal Law (Offenses Involving Marihuana)
or a plea to a lesser included offense thereunder: six points.
Article 225 of the Penal Law (Gambling Offenses) or a plea to
a lesser included offense thereunder: six points.
Article 230 of the Penal Law (Prostitution Offenses) or a plea
to a lesser included offense thereunder: six points.
Sections 165.40, 165.45, 165.50, 165.52 and 165.42 of the Penal
Law (criminal possession of stolen property) or a plea to a lesser
included offense thereunder: six points.
Sections 65 or 82 of the Alcoholic Beverage Control Law or a
plea to a lesser included offense thereunder: six points.
Article 265 of the Penal Law (Firearms and Other Dangerous Weapons)
or a plea to a lesser included offense thereunder: six points.
Sections 260.20 and 260.21 of the Penal Law (unlawfully dealing
with a child) or a plea to a lesser included offense thereunder: six
points.
Article 263 of the Penal Law (Sexual Performance by a Child)
or a plea to a lesser included offense thereunder: six points.
Section 415-a of the Vehicle and Traffic Law (Vehicle Dismantlers)
or a plea to a lesser included offense thereunder: four points.
Section 175.10 of the Penal Law (falsifying business records)
or a plea to a lesser included offense thereunder: four points.;
Sections 170.65 and 170.70 of the Penal Law (forgery of and
illegal possession of a vehicle identification number) or a plea to
a lesser included offense thereunder: four points.
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 or a plea
to a lesser included offense thereunder: four points.
Article 178 of the Penal Law (Criminal Diversion of Prescription
Medications and Prescriptions) or a plea to a lesser included offense
thereunder: four points.
Section 147 of the Social Services Law (Food Stamp Program fraud)
or a plea to a lesser included offense thereunder: four points.
Operating a business during hours in which the business is required to be closed pursuant to Chapter 43 of the Code of the City of Yonkers, otherwise known as the "Zoning Code": four points.
Article 130 of the Penal Law (Sex Offenses) or a plea to a lesser
included offense thereunder: six points.
[Added 6-14-2016 by L.L.
No. 4-2016]
Article 245 of the Penal Law (Offenses Against Public Sensibilities)
or a plea to a lesser included offense thereunder: six points.
[Added 6-14-2016 by L.L.
No. 4-2016]
For the purposes of this article, a conviction for an offense
in a court of competent jurisdiction or an administrative bureau shall
not be required. Instead the City shall prove by a preponderance of
the evidence that the violations have occurred. However, a conviction
as defined and applied in accordance with the provisions of Section
1.20 of the Criminal Procedure Law, in any court of competent jurisdiction,
shall constitute conclusive proof of a violation. Conviction of an
attempt to commit a violation of any of the specified provisions shall
be considered a conviction for a violation of the specified provision.
In addition to the enforcement procedures established elsewhere,
the Commissioner, after notice and an opportunity for a hearing, shall
be authorized:
[Amended 5-8-2018 by
G.O. No. 6-2018]
A.
Prior to the issuance of an order by the Commissioner pursuant to
this article, the Commissioner shall give notice and opportunity for
a hearing to the owner, and any other person directly or indirectly
in control of the premises, and any residential tenant in the case
of residential premises, wherein the public nuisance is being conducted,
maintained or permitted. Such notice and opportunity to be heard may
be given to a mortgagee of the premises. Such notice shall be served
upon an owner or any other person directly or indirectly in control
of the premises pursuant to Article 3 of 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 other service other than delivery
to the person to be served shall be complete immediate upon delivery,
mailing or posting without the necessity of filing proof of service
with the Clerk of the court. In the case of premises containing residences,
service shall also be made by affixing said notice to the premises.
B.
The notice specified in Subsection A of this section shall:
(1)
Specify the activity creating the public nuisance, except no information
identifying any victim shall be included in the notice;
(2)
Provide 30 days for elimination for the public nuisance;
(3)
Inform the person to whom it is directed, and any other person directly
or indirectly in control of the premises, and any residential tenant
in the case of residential premises, of their right to apply within
10 days of service of the notice for a hearing before the Commissioner;
(4)
Inform the owner or any other person directly or indirectly in control
and all tenants of the premises that upon expiration of 30 days after
service without a hearing before the Commissioner, or upon noncompliance
with any written agreement reached at the hearing, the Commissioner
shall act to obtain compliance as provided by this article; and
(5)
Inform the owner or any other person directly or indirectly in control
of the premises of the obligation to post a copy of the notice within
five days, in a conspicuous place, so that all premises occupants
and others entering the premises 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
Commissioner shall act to obtain compliance as provided in this article,
including, but not limited to, closing the premises.
The lack of knowledge of, acquiescence or participation in,
or responsibility for a public nuisance on the part of the owner,
mortgagee or any other person directly or indirectly in control of
the premises, or having any interest in the premises or in any property,
real or personal, used in conducting or maintaining the public nuisance,
shall not be a defense by such owner, mortgagee or other person.
The Commissioner shall issue the order provided for in § 75-25 herein by posting said order on the premises wherein the public nuisance is occurring and mailing a copy by first class mail of said order to the owner, mortgagee or any other persons directly or indirectly in control of the premises, within one business day of the posting of said order on the premises.
B.
Where the Commissioner closes a premises pursuant to this article,
such closing shall be for such period as the Commissioner may direct,
but in no event shall the closing be for a period of greater than
one year from the issuance of the order.
C.
Upon receiving a copy of the order issued by the Commissioner, pursuant to §§ 75-25 and 75-28, the Corporation Counsel shall maintain a special proceeding to affix a civil penalty in the amount of up to $5,000, and to collect any costs and expenses incurred by the City of Yonkers, in commencing the proceeding, closing the premises and in relocating any occupants on the premises. The Corporation Counsel shall file a notice of pendency of the proceeding in the Westchester County Clerk's Office.
D.
The judgment in such proceeding, in favor of the City of Yonkers,
shall establish the penalty sued for with costs and disbursements
as a lien upon the premises, subject only to taxes, assessments, water
rates, mortgages and mechanic's liens as they exist thereon.
A.
The Corporation Counsel shall have the power, on ex parte application to any court of competent jurisdiction, to appoint a receiver of rents and profits of the premises for the purposes of collecting the civil penalty established pursuant to § 75-28 herein, and abating the public nuisance. The receiver shall have the powers, duties and rights of a receiver of rents and profits of real estate, as provided by law; provided, however, that the Corporation Counsel shall act as counsel to the receiver, and the receiver shall not be allowed any expenditure for counsel fees, and the receiver's services and those of any agent or agents whom the receiver may retain. The receivership shall continue until the amount of the City of Yonkers' liens, with interest at the rate of 9% per annum and the receiver's commissions, have been fully paid and the nuisance abated; provided, further, that nothing in this section shall be construed to prevent any prior lienor from applying to a court in a proper case for a receiver of the premises.
B.
At any time after the entry of any judgment establishing a lien upon
the premises, the Corporation Counsel, on behalf of the City of Yonkers,
may apply to the court for leave to sell the premises. Upon such application,
the court may order the premises sold at public auction, subject to
taxes, assessments, water rates, mortgages and mechanics liens.
A closing directed by the Commissioner pursuant to this article
shall not constitute an act of possession, ownership or control by
the City of Yonkers over the closed premises.
A.
It shall be a Class I offense for any person to use or occupy or
to permit any other person to use or occupy the premises or any portion
thereof ordered closed by the Commissioner.
B.
Mutilation or removal of a posted order of the Commissioner shall
be a Class II offense.
C.
Intentional disobedience of or resistance to any provision of the
order issued by the Commissioner, in addition to any other punishment
prescribed by law, shall be a Class II offense.
D.
Each day's violation shall be a separate offense.
The Commissioner may promulgate such rules and regulations as
may be necessary to carry out the provisions of this article.
Neither the City of Yonkers, nor any officer, agent or employee
thereof, shall be personally liable for any damage resulting from
any official determination, order or action required or permitted
under this article.
If any provision of this article or the application thereof
to any person or circumstances is held invalid, the remainder of this
article and the application of such provision to the other persons
or circumstances shall not be rendered invalid thereby.
[Added 5-8-2018 by G.O. No. 6-2018]
Any person who is the victim of a violent or sexual assault,
or witness thereto, has a right to request police and emergency assistance
and be free of any direct or indirect penalty or retaliation, including
by termination or refusal to renew a tenancy or by eviction. Any violation
of this section is a Class I offense.
