City of Oneida, NY
Madison County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Common Council of the City of Oneida 9-2-2014 by L.L. No. 6-2014. Amendments noted where applicable.]
GENERAL REFERENCES
Alcoholic beverages — See Ch. 9.
Bingo and games of chance — See Ch. 30.
Firearms and weapons — See Ch. 57.
Noise — See Ch. 98.
Zoning — See Ch. 190.
It is hereby declared to be the policy of the City of Oneida to provide for the proper use of real property to prevent illegal, unhealthful, hazardous or dangerous conditions. By this chapter, the Common Council of the City of Oneida seeks to establish a procedure for the City of Oneida to effectively abate those dangers which constitute a nuisance to public safety, health, life and property, and to assess the cost of abatement against those individuals who knowingly conduct, maintain, allow or permit the existence of a public nuisance and the real properties on which such activity occurs.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed:
CRIMINAL CONVICTION
The entry of a plea of guilty or a verdict of guilty for one or more counts as set forth in an accusatory instrument.
ILLEGAL DRUG ACTIVITY
The use or possession of a controlled substance or marijuana, as defined by the State Penal Law.
OWNER
The owner(s) or landlord(s) of a building, structure or real property, including his or her agent.
PREMISES
Real property or a building or structure, or any part thereof.
A. 
Includes, but shall not be limited to:
(1) 
Any building, structure or real property used for the illegal use, possession or distribution of a controlled substance or marijuana, as defined by the State Penal Law.
(2) 
Any building, structure or real property used for prostitution as defined by the State Penal Law.
(3) 
Any building, structure or real property used for indecent or 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 illegal gambling activity as defined by the State Penal Law.
(5) 
Any building, structure or real property used for 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 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 loitering, as defined by the State Penal Law.
(9) 
Any building, structure or real property wherein an occupant, guest or business invitee commits criminal activities involving assault, gang assault, harassment or disorderly conduct as said criminal activities are defined by the State Penal Law.
(10) 
Any building, structure or real property wherein there exists or has occurred any violation of this Code, including, but not limited to, Chapter 190, Zoning, and the New York State Uniform Fire Prevention and Building Code,[1] including the Property Maintenance Code of New York State, and any subsequent amendments or superseding provisions thereto, all of which have been previously adopted and incorporated into this Code by reference.
B. 
The above definition of a public nuisance is not intended and shall not be interpreted to cover or include requests for police, medical, fire or ambulance services in the face of a threat or a perceived threat to person or property, or any request for the assistance of the police to enforce a court order, including, but not limited to, circumstances in which the request for police, medical, fire or ambulance services or public service intervention arises from an incident relating to intimate partner violence, sexual assault, child abuse or stalking against any person at or near the premises.
TENANT
The lessee or occupant of a building, structure or real property. For purposes of this chapter, the term "tenant" shall include an occupant of one or more rooms in a rooming house or a residence, not including a transient occupant, of one or more rooms in a hotel for 30 consecutive days or longer.
[1]
Editor's Note: See Ch. 33, Building Code Administration and Enforcement.
No owner, operator, manager or tenant of premises shall knowingly conduct, maintain, permit or allow the existence of a public nuisance at the premises.
A. 
The following shall constitute a presumption of a public nuisance:
(1) 
Notice by first-class mail or personal service, from the City of Oneida, of the activities entailing a public nuisance to the owner, operator, manager or tenant of premises shall be prima facie evidence of knowledge of a public nuisance.
(2) 
The existence of two or more criminal convictions for any of the activities set forth in the definition of a public nuisance in § 122-2 at any premises within the two-year period prior to the commencement of a civil action and/or administrative hearing shall be prima facie evidence of the existence of a public nuisance.
(3) 
The existence of two or more incidents of the following activities at any premises within the one-year period prior to the commencement of a civil action and/or administrative hearing shall be prima facie evidence of the existence of a public nuisance:
(a) 
Service of a search warrant on the premises where controlled substances, marijuana and/or weapons are seized.
(b) 
Finding of illegal controlled substances or illegal firearms or weapons on the premises.
(c) 
Investigative purchases of illegal controlled substances on the premises by law enforcement agencies or their agents.
B. 
Once there exists the presumption of a public nuisance, as set forth in Subsection A above, the City shall serve, by means of first-class mail or personal service, written notice upon the owner, as set forth in the last filed tax roll, advising of such presumption. Such notice shall set forth the alleged facts constituting the public nuisance and shall inform the owner of the City's intent to pursue action under either § 122-5 or 122-11.
C. 
Upon notification from the City of Oneida of the presumption of a public nuisance, as set forth in Subsection B above, good faith efforts, commenced by the owner in a timely manner to eradicate such public nuisance, shall preclude further enforcement action by the City of Oneida, unless and until such good faith efforts cease or activities constituting a public nuisance resume. In the event an owner's good faith efforts cease or public nuisance activity resumes, the City of Oneida shall notify the owner, in the manner set forth in Subsection B above, of its intent to proceed under either § 122-5 or 122-11.
A. 
At the direction of the Common Council of the City of Oneida, the City Attorney may bring and maintain a civil action in the name of the City to abate a public nuisance and shall commence a civil action by filing a summons and complaint in the manner required by the New York State Civil Practice Laws and Rules.
B. 
The summons and complaint shall name as defendant(s) at least one of the owners of some portion of or of some interest in the property, as set forth in the last filed tax roll, and shall describe the owner's premises by tax map number and/or street address.
C. 
The summons and complaint may also name as defendant any owner, operator, manager or tenant of the premises.
D. 
The complaint shall allege the facts constituting the public nuisance.
E. 
The complaint shall be accompanied by an affidavit, to affirm that the owner or his agent had notice of the public nuisance and an opportunity to abate the public nuisance.
F. 
Because the public nuisance is conducted, maintained, permitted or allowed in the City of Oneida, the venue of such action shall be in Madison County.
G. 
In rem jurisdiction over the premises shall be completed by affixing the summons to the premises and by mailing the summons and complaint by certified or registered mail, return receipt requested, to the person in whose name the real property is recorded as determined by the last filed tax rolls.
H. 
Defendant(s), other than the record property owner of the premises, shall be served with the summons and complaint in the manner required by the New York State Civil Practice Laws and Rules.
I. 
With respect to any action commenced or to be commenced, the City Attorney may file a notice of pendency pursuant to the New York State Civil Practice Laws and Rules.
If, upon the trial of an action for a public nuisance or upon a motion for summary judgment, a finding is made that defendant(s) 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 the defendant(s) conducted, maintained, permitted or allowed the public nuisance after notice to abate had been given by the City.
A. 
If, upon the trial of a civil action for a public nuisance or upon a motion for summary judgment, a finding is made that defendant(s) have conducted, maintained, permitted or allowed a public nuisance, a permanent injunction may be granted.
B. 
A permanent injunction may prohibit defendant(s) from conducting, maintaining, permitting or allowing the public nuisance.
C. 
A permanent injunction may authorize agents of the City to remove and correct any condition(s) in violation of this Code. The judgment may further order that the cost of removing and correcting the violation(s), plus a charge of 50% as compensation to the City for administration and supervision expenses, be charged against defendant(s) and awarded to the City. The judgment may further order that the cost of removing and correcting the violation(s), plus the charge of 50% as compensation to the City for administration and supervision expenses, shall constitute a lien against the real property and shall be collected in the same manner as provided by law for the collection of real property taxes within the City.
D. 
A judgment ordering a permanent injunction may direct the closing of the premises by the Oneida City Police Department, to the extent necessary to abate the public nuisance.
E. 
A judgment awarding a permanent injunction shall provide for all costs and disbursements allowed by the New York State Civil Practice Laws and Rules and for the actual costs, expenses and disbursements of the City in investigating, bringing and maintaining the action.
A. 
If the judgment of a civil action directs the closing of the premises, the Oneida City Police Department shall serve the judgment upon defendant(s) in the manner required by New York State Civil Practice Laws and Rules and shall post a copy of the judgment upon one or more of the doors at entrances of the premises or in a conspicuous place on the premises.
B. 
In addition, the Oneida City Police Department shall affix upon one or more of the doors at entrances of the premises or in a conspicuous place on the premises, a printed notice stating "Closed by Court Order" in block lettering of sufficient size to be observed by anyone intending to enter the premises.
C. 
Mutilation or removal of the posted judgment or notice, while it remains enforced, will be considered a separate violation and shall be punishable pursuant to § 55.10(3)(a) of the State Penal Law.
D. 
The Oneida City Police Department may then command all persons present in the premises to vacate the property. After the premises are vacated, the Oneida City Police Department may secure the premises.
E. 
The closing directed by the judgment shall be for a period as the Court may direct but in no event shall the closing period exceed one year from the posting of the judgment.
F. 
A closing by the Oneida City Police Department shall not constitute an act of possession, ownership or control by the City.
Upon a motion or order to show cause from the City Attorney and pending an action for a permanent injunction, a preliminary injunction enjoining the public nuisance may be granted for any of the relief obtained by a permanent injunction.
Pending a motion or order to show for a preliminary injunction, a temporary restraining order or temporary closing order may be granted, without notice to defendant(s), for any of the relief obtainable by a permanent injunction.
As an alternative or in addition to commencing a civil action, whenever there exists a presumption of a public nuisance, as set forth in § 122-4 above, at any premises within the City, the City Attorney may, at the direction of the City of Oneida Common Council, initiate an administrative hearing in accordance with the following procedure:
A. 
A notice of the hearing shall be served on all owners of the premises as determined by the last filed tax roll and may also be served on any known operator, manager and/or tenant of the premises. The notice shall be served in the manner required by the New York State Civil Practice Laws and Rules.
B. 
The notice shall allege the facts constituting the public nuisance, shall contain a time and place for a hearing to be held before a panel, and shall advise the owner(s), and any known operator, manager and/or tenant, of their right to appear represented by legal counsel.
C. 
The hearing panel shall consist of a member to be appointed by the 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 his/herself or any member of his/her staff to the hearing panel.
D. 
At the time and place designated in the notice, the City Attorney shall present all relevant evidence and/or witnesses demonstrating the existence of a public nuisance at the premises and as to appropriate remedies. The owner, operator, manager and/or tenant of the premises shall have the right to examine such evidence and shall cross-examine any witnesses presented. The owner, operator, manager and/or tenant of the premises may present any relevant evidence and/or witnesses as a defense. The City Attorney shall have the right to examine such evidence and cross-examine any witnesses presented by the owner, operator, manager and/or tenant of the premises.
E. 
Within five business days of the hearing, the panel shall provide a finding of fact to the Mayor. The finding of fact shall state whether there is prima facie evidence of the existence of a public nuisance at the premises. The panel shall further provide a written recommendation of remedies to abate the public nuisance.
A. 
To abate a public nuisance, the Mayor, upon receipt of a finding of fact and recommendation from the panel, shall have the power:
(1) 
To issue a decision and order suspending the certificate of occupancy for the premises for a period not to exceed one year.
(2) 
To issue a decision and order directing the closing of the premises by the Oneida City Police Department, to the extent necessary to abate the public nuisance, pursuant to the procedures set forth in § 122-8.
(3) 
In conjunction with, or in lieu of, the foregoing powers, to issue a decision and order for various measures to be taken by the owner, operator, manager and/or tenant of the premises, to the extent necessary to abate the existing public nuisance and to ensure the prevention of future public nuisance actions from occurring at or near the premises, which shall include, but shall not be limited to:
(a) 
Requiring the owner, operator, manager and/or tenant to modify and improve the premises to deter further and future public nuisance activity; and/or
(b) 
Directing subsequent purchaser(s) to comply with the provisions of any orders of suspension for the certificate of occupancy, unless or until the subsequent purchaser appears before the hearing panel with an appropriate plan to avoid further incidents of public nuisance for the panel to review and make recommendations.
B. 
The decision and order shall be served upon the owner, operator, manager and/or tenant of the premises in a manner similar to that described in § 122-11A herein.
C. 
Nothing within this section shall limit the authority of the Mayor to take such other and further actions deemed necessary to abate any existing public nuisances to the extent necessary to ensure the protection of the health, safety and welfare of the general public.
If any clause, sentence, paragraph, word, section or part of this chapter shall be adjudged by any court of competent jurisdiction to be unconstitutional, illegal or invalid, such judgment shall not effect, impair or invalidate the remainder thereof, but shall be confined to in its operation to the clause, sentence, paragraph, word, section or part thereof, directly involved in the controversy in which said judgment shall have been rendered.