[Adopted 11-4-2020 by Ord. No. 208]
[1]
Editor's Note: The title of this article was amended 4-5-2023
by Ord. No. 98.
The purpose of this article is to establish regulatory controls
to ensure that certain businesses are operated in accordance with
law, do not have a negative impact upon surrounding residential neighborhoods,
or do not endanger the health, safety or welfare of persons in the
City of Utica.
As used in this article, the following terms shall have the
meanings indicated:
A neighborhood convenience store and smoke shop as defined
herein.
[Amended 4-5-2023 by Ord. No. 98]
A retail sales business with less than 6,000 square feet
of gross floor area devoted, in whole or part, to the sale of food
and beverages, prepackaged food, alcohol, tobacco, and lottery sales
to be used and consumed primarily off the premises, excluding the
establishments that dispense of gasoline or any other motor vehicle
fuels.
[Added 4-5-2023 by Ord. No. 98[1]]
Means and includes the owner or owners of the freehold of
the premises or lesser estate therein who appears as the owner of
record with the Oneida County Clerk's Office, as well as any person,
agent, firm, entity or corporation having any legal or equitable interest
in the property at the time a notice, order or other document is issued
by the Division of Code Enforcement.
The building in which the business is located, as well as
accessory structures and uses, including parking lots, and the land
on which the building is located.
An owner and/or operator or future owner and/or operator
of the business specified on a particular certificate of use for a
particular business location.
A building or portion thereof where tobacco products and
paraphernalia, which includes but shall not be limited to cigarettes,
cigars, pipes, Kreteks (clove cigarettes), hookahs, and Shisha, are
purchased and/or consumed on the premises.
[Amended 4-5-2023 by Ord. No. 98]
[1]
Editor's Note: This ordinance also repealed the definition
of "neighborhood retail establishment."
(a)
No proprietor shall operate or maintain a business within the
City of Utica without first having obtained a certificate of use or
conditional certificate of use authorizing the operation of said business
by said proprietor at the specific business location.
(b)
No owner shall allow a business to be operated or maintained
at the premises without requiring the proprietor to obtain a certificate
of use or conditional certificate of use authorizing the operation
of said business by said proprietor at the specific business location.
(c)
Any business operating without a valid certificate of use shall
be considered unlawful pursuant to the provisions of Section 107.1.4
of the 2010 Property Maintenance Code of New York State and may be
subject to immediate closure by the Division of Code Enforcement.
(a)
An application for a certificate of use shall be made by the
owner or the proprietor to the Division of Code Enforcement on forms
prescribed by the Director of Code Enforcement. The application shall
request relevant information relating to the owner, proprietor and
the business to be conducted at the premises, including the existence
of necessary licenses and permits for the business.
(b)
Applications for a certificate of use are to be submitted by
the owner or proprietor, including a proprietor who does not yet own
and/or operate the subject business, but will own and/or operate the
subject business within the next 90 days.
(c)
In the event the application is not approved, the owner and
proprietor shall be advised as to the specific requirements which
must be met to qualify for a certificate of use and of the right to
a hearing on such determination.
(d)
In the event the Director of Code Enforcement determines after the City of Utica's review of the application pursuant to Section 2-14-340 of this article that the business is not qualified for a certificate of use based upon any requirement which the Director of Code Enforcement determines cannot be complied with by means of an extension of time under Section 2-14-341(b) of this article, the Director of Code Enforcement shall notify the owner and proprietor in writing of the reasons the application cannot be approved and provide notice to the owner and proprietor of the right to a hearing on such determination. Any such hearing shall be requested in writing to the Director of Code Enforcement within 15 days of the date of such notice of determination that the application cannot be approved.
(e)
A hearing, when requested, shall:
(1)
Be held before a hearing officer chosen by the Director of Code
Enforcement who shall not be an employee of the Division of Code Enforcement;
(2)
Be recorded by a stenographer;
(3)
Take place no later than 15 business days after the Director
of Code Enforcement receives the written request from the owner or
proprietor for the hearing. The Director of Code Enforcement may adjourn
the date only upon the owner or proprietor presenting compelling reason(s)
in writing that an adjournment of the hearing date is warranted;
(4)
The owner and proprietor shall be allowed to be represented
by counsel and shall be allowed to call witnesses on their behalf
and conduct cross-examination of all witnesses.
(f)
Upon receipt of the transcript of the hearing, the Corporation
Counsel or his/her designee shall have the transcript and all exhibits
from the hearing forwarded to the hearing officer. The hearing officer
shall review the transcript and exhibits and within 30 days from receipt
of the transcript and exhibits, render a written recommendation to
the Director of Code Enforcement as to whether the application for
a certificate of use should be approved.
(g)
Thirty days after receiving from the hearing officer a transcript
of the suspension/revocation hearing, all exhibits submitted at the
hearing and the hearing officer's written recommendation, the Director
of Code Enforcement shall conduct a de novo review of the transcript,
all exhibits submitted at the hearing and the hearing officer's written
recommendation. The director shall determine whether the application
for a certificate of use should be approved. If the determination
of the Director of Code Enforcement is that the application be denied,
the Director shall issue a written order containing his/her determination.
(a)
Upon receipt of an application for a certificate of use, the
Director of Code Enforcement or his/her designee, the Chief of Fire
or his/her designee, and the Zoning Administrator or his/her designee
shall inspect the premises to determine whether the proprietor and
owner are complying with the laws and ordinances which they are charged
with enforcing. The Chief of Police or his/her designee shall also
conduct a criminal background check on the applicant. The Chief of
Police, the Director of Code Enforcement, the Chief of Fire and the
Zoning Administrator, along with members of their staff, shall have
the right to enter upon any premises for which a certificate of use
is sought for the purpose of making such an inspection during normal
business hours, and shall also have the authority to seek warrants
where necessary.
(b)
Upon receipt of an application for a certificate of use, the
City of Utica Commissioner of Urban and Economic Development or his/her
designee shall review the location to ensure that the operation of
the business at that location will be in compliance with the Zoning
Ordinance.
(c)
The Director of Code Enforcement or his/her designee shall determine
that the owner and proprietor do not have an expired conditional certificate
of use, is not serving a period of suspension, has not had a previous
certificate of use or conditional certificate of use revoked, is not
the subject of pending charges brought for violations of the terms
and conditions of a certificate of use or conditional certificate
of use, and that the owner and proprietor has procured all necessary
licenses and permits for the business.
(a)
A certificate of use shall be issued when the following conditions
have been satisfied:
(2)
The application form has been completed and accepted by the
Division of Code Enforcement;
(3)
The owner and proprietor have all necessary licenses and permits
for the business;
(4)
The proprietor does not have an expired conditional certificate
of use, a certificate of use or conditional certificate of use that
is under suspension, a previous certificate of use or conditional
certificate of use revoked, and/or does not have charges pending for
violations of the terms and conditions of a certificate of use or
conditional certificate of use;
(5)
The owner and the proprietor do not owe the City any money for
delinquent taxes, water charges, civil penalties, parking tickets
or other duly incurred charges, fines or penalties; and
(6)
The owner or proprietor indicates in a signed, notarized writing on a form provided by the Director of Code Enforcement their intention to take the necessary action to comply with the requirements given them by the applicable City officials in Section 2-14-340 for the approval of their application for a certificate of use.
(b)
A conditional certificate of use shall contain a date by which the owner or proprietor who signed the notarized writing submitted to the Director of Code Enforcement must comply with the requirements for approval by the applicable City officials in Section 2-14-340 of this article. A conditional certificate of use shall not be extended for any reason.
(c)
Upon completion of the requirements set forth in the conditional
certificate of use and the approval of the owner's application by
said City officials, the Director of Code Enforcement shall issue
a certificate of use to the proprietor for the business in accordance
with the terms of this section.
(d)
Both certificates of use and conditional certificates of use
shall include the date on which the certificate of use or conditional
certificate of use will expire.
(e)
Certificates of use and conditional certificates of use shall
be conspicuously posted in a window or door so that they are visible
from the closest public right-of-way.[1]
[1]
Editor's Note: Former Subsection (f), which immediately followed
and set forth a time limit for the issuance or denial of certificates,
was repealed 10-5-2022 by Ord. No. 90.
(a)
The proprietor of any business shall comply with all provisions
of federal and state statutes and rules and regulations and all City
of Utica local laws, ordinances and rules and regulations relating
to the conduct of businesses and the occupation, use and maintenance
of the premises in which the business is located. Moreover, owners
and proprietors shall comply with any and all notices, orders, decisions
and determinations made by any City official which govern the occupation
and use of the business.
(b)
The proprietor of any business shall cause the certificate of
use to be posted in a conspicuous place visible to the public on the
premises of the business.
(c)
The proprietor of any business shall not permit at any time
a greater number of persons on the premises than the capacity approved
by the City of Utica.
(d)
The proprietor of any business shall maintain good order on
the premises at all times. The proprietor of any business shall also
be responsible for removing refuse from the premises and obstructions
from the sidewalk on the premises as well as for operating the business
in accordance with the requirements of all state statutes, rules and
regulations and all City of Utica local laws, ordinances and rules
and regulations, and for operating the business so that neither the
business nor its patrons become a source of disruption to other building
tenants or a source of disruption on the sidewalks, streets or other
private property in the vicinity of the business. The term "failure
to maintain good order" shall include, but not be limited to, the
following:
(1)
Allowing or permitting the premises to become disorderly, including allowing or permitting offenses against public order in violation of Sections 2-15-41 through 2-15-47 of the Code of Ordinances of the City of Utica, as amended.
(3)
Prostitution.
(4)
Illegal possession, use, gift, sale, or offer for sale of alcoholic
beverages.
(5)
Illegal possession, use, gift, sale, or offer for sale of cigarettes
or tobacco products.
(6)
Food stamp or welfare fraud or criminal diversion of prescription
medications and prescriptions.
(7)
Littering in violation of Sections 2-22-31 through 2-22-43 of the Code of Ordinances of the City of Utica, as amended.
(8)
Possession, use, gift, sale, or offer for sale of illegal drugs.
(9)
Noise Control Ordinance violations in contravention of Sections 2-15-56 through 2-15-66 of the Code of Ordinances of the City of Utica, as amended.
(10)
Possession of stolen property.
(11)
Operating beyond the legal hours of operation.
(12)
Illegal possession, use, gift, sale, or offer for sale of dangerous
weapons.
(13)
Violations of the New York State Uniform Fire Prevention and
Building Code and the City of Utica's Zoning Ordinance, Property Conservation
Code, Building Code, Electrical Code, Mechanical Code and Elevator
Code.
The fee for a certificate of use, both for initial applications
for a certificate of use and for renewals of a certificate of use
shall be $200 every two years.
Certificates of use shall be valid for a period of two years
from the date of issuance, unless the certificate is suspended or
revoked pursuant to this article. The date of expiration shall be
printed on the certificate.
(a)
No later than 60 days prior to the expiration date of the certificate
of use, the owner of the applicable business shall apply for the renewal
of the business's certificate of use with the Division of Code Enforcement
on a form provided by the Director of Code Enforcement. The period
for renewal shall be listed on the certificate of use when it is issued.
(b)
The issuance or denial of renewals of certificates of use shall follow the requirements set forth in Section 2-14-341.
(c)
Failure to apply for and obtain a renewal of a certificate of
use may result in the business being closed as unlawful, pursuant
to Section 107.1.4 of the 2010 New York State Property Maintenance
Code, until the renewal certificate of use is issued. Failure of the
Director of Code Enforcement to provide such form shall not relieve
the owner from the obligation to comply with this section.
(a)
Certificates of use shall not be transferred or assigned in
the event of any change involving the proprietor, the type of business,
or the business location. A new certificate of use shall be required
if the certificate holder changes the type of business at the location
or relocates the business, or if another person wishes to operate
the same business or a new business at the location.
(b)
The proprietor or owner of any business that has a certificate
of use shall notify the Director of Code Enforcement within five business
days following the date when such proprietor or owner transfers, assigns,
sells, closes or moves the business. Upon being notified, the Director
of Code Enforcement shall cancel the certificate of use for the business.
(a)
In the event the owner or the proprietor shall fail to apply for a certificate of use as required herein, the Director of Code Enforcement shall notify the proprietor or owner in writing of such violation pursuant to the procedure set forth in Section 2-6-30 of the Code of Ordinances of the City of Utica, as amended.
(b)
In the event the owner or the proprietor is provided with notice pursuant to Section 2-14-347(a) and neither submits the required application within the time set for the correction of the violation, the Director of Code Enforcement and/or his/her designee may treat the failure to apply for the certificate of use the same as any other violation of this chapter shall be treated. Additionally, the business may be deemed unlawful pursuant to Section 107.1.4 of the 2010 New York State Property Maintenance Code and subject to immediate closure by the Division of Code Enforcement.
The proprietor or owner of a business subject to the provisions of this article must obtain a certificate of use or conditional certificate of use prior to the commencement of any business operations. In the event an application is approved, the Director of Code Enforcement shall issue the proprietor a certificate of use in accordance with the terms of this article. In the event the application is denied, the provisions of Section 2-14-339 shall be followed.
(a)
Any certificate of use or conditional certificate of use issued
pursuant to this article may be suspended or revoked by the Director
of Code Enforcement in accordance with the provisions of this article
based on:
(1)
Findings after a suspension or revocation hearing on notice
conducted in accordance with the procedure detailed in Subsection
(b) below; or
(2)
A closing of the business location pursuant to Section 2-14-346(c)
of this article; or
(3)
Failure to comply with the provisions of Section 2-14-350 and the proprietor or owner has been convicted of a felony or misdemeanor involving theft or fraud since the certificate of use was issued as detailed in Section 2-14-349(c) below.
(b)
In the event a proprietor issued a certificate of use has failed to maintain good order at the subject business as required by Section 2-14-350, the Director of Code Enforcement is authorized to conduct a suspension or revocation hearing on notice to the owner and proprietor to determine whether the certificate of use should be suspended or revoked based on the violations set forth in the notice. Notice shall be served pursuant to the service rules set forth in Article 3 of the New York State Civil Practice Law and Rules.
(1)
A copy of the hearing notice shall be sent to the District Councilor
in whose district the subject business is located.
a.
In the event the District Councilor and/or his/her constituents
wish to provide testimony to be considered by the hearing officer,
and ultimately the Director of Code Enforcement, they shall be allowed
to submit written statements made under penalty of perjury before
a notary public. Such statements shall be forwarded to the Director
of Code Enforcement no less than 15 days prior to the day of the hearing.
The Director of Code Enforcement shall send, via certified mail, copies
of the written statements to the owner and proprietor at the address
to where service of the notice of hearing was made no less than 10
days prior to the day of the hearing. The original written statements
shall be delivered by the Director of Code Enforcement to the hearing
officer prior to the day of the hearing.
(2)
The suspension or revocation hearing shall be scheduled for
a date no fewer than 30 days and no more than 60 business days after
the date upon which the owner and proprietor are served with notice
of the hearing. The Director of Code Enforcement may adjourn the date
only upon the owner or proprietor presenting compelling reason(s)
in writing that an adjournment of the hearing is warranted. Such an
adjournment shall in no circumstances be later than 20 business days
from the originally scheduled date for the suspension or revocation
hearing.
(3)
The suspension or revocation hearing shall be held before the hearing officer chosen by the Director of Code Enforcement, who shall not be an employee of the Division of Code Enforcement. The hearing officer shall consider as evidence any written testimony that was provided pursuant to Section 2-14-349(b)(1)a above. Oral testimony from members of the public shall not be heard. Strict adherence to the New York Rules of Evidence shall not be necessary.
(4)
The suspension or revocation hearing shall be recorded by a
stenographer.
(5)
The owner and proprietor shall be allowed to be represented by counsel and shall be allowed to call witnesses on their behalf and conduct cross-examination of all witnesses. Additionally, the owner and/or proprietor shall be allowed to testify and/or submit evidence to respond to any written testimony previously submitted pursuant to Section 2-14-349(b)(1)a above.
(6)
Upon receipt of the transcript of the hearing, the Corporation
Counsel or his/her designee shall have the transcript and all exhibits
from the hearing forwarded to the hearing officer. The hearing officer
shall review the transcript and exhibits and within 30 days from receipt
of the transcript and exhibits, render a written recommendation to
the Director of Code Enforcement as to whether the certificate of
use should be revoked, suspended or remain valid.
(7)
Thirty days after receiving from the hearing officer a transcript
of the suspension/revocation hearing, all exhibits submitted at the
hearing and the hearing officer's written recommendation, the Director
of Code Enforcement shall conduct a de novo review of the transcript,
all exhibits submitted at the hearing and the hearing officer's written
recommendation. The Director shall determine whether the certificate
of use should be revoked, suspended or remain valid. If the determination
of the Director of Code Enforcement is that the certificate should
be revoked or suspended, the director shall determine the length of
time for which the certificate shall be revoked or suspended. The
Director shall issue a written order containing his/her determination.
(c)
Notwithstanding the provisions above, the Director of Code Enforcement shall be authorized to temporarily suspend a certificate of use prior to a suspension or revocation hearing in the event that the owner or proprietor has failed to maintain good order at the subject business as required by Section 2-14-350, and the proprietor has been convicted of a felony or misdemeanor involving theft or fraud since the time the certificate of use was issued.
(d)
In the event the Chief of Police of the City of Utica has commenced enforcement proceedings against a property owner to abate a nuisance in accordance with Chapter 2-17 et seq. of the Code of Ordinances of the City of Utica, as amended, relative to a premises containing a business subject to the certificate of use requirements of this article, a copy of the notice of hearing shall be given to the business at the address provided for notice in connection with a certificate of use, along with a written notice that in the event the business location is closed as a result of the nuisance abatement proceeding, the certificate of use shall be revoked for the period of such closing and the business shall remain closed for the period provided in such nuisance abatement order.
(e)
The action of the Director of Code Enforcement in granting or
refusing to grant or to renew a license under this article or in revoking
or suspending or refusing to revoke or suspend such a license or imposing
any fine or reprimand shall be subject to review by a proceeding instituted
under Article 78 of the Civil Practice Law and Rules at the instance
of the applicant for such license, the holder of a license so revoked,
suspended, fined or reprimanded or the person aggrieved.
(a)
For the purposes of this chapter, the owner of a business holding
a certificate of use or conditional certificate of use shall be deemed
to have failed to maintain good order at the business location in
the event a sufficient number of violations are found to have occurred
relative to separate incidents at the subject premises, resulting
in the accumulation of eight or more points within a period of 12
months or 12 or more points within a period of 24 months in accordance
with the following point system:
(1)
Violations of the following state statutes and rules and regulations
and City of Utica local laws, ordinances and rules and regulations,
which have not resulted in a conviction or judgment, shall be assigned
a point value of four points:
a.
Article 220 of the New York State Penal Law: Controlled Substances
Offenses;
b.
Article 221 of the New York State Penal Law: Offenses Involving
Marijuana;
c.
Article 225 of the New York State Penal Law: Gambling Offenses;
d.
Article 230 of the New York State Penal Law: Prostitution Offenses;
e.
Article 120 of the New York State Penal Law: Assault and Related
Offenses;
f.
Article 155 of the New York State Penal Law: Larceny Offenses;
g.
Sections 165.40, 165.45, 165.50, 165.52 and 165.54 of the New
York State Penal Law: Criminal Possession of Stolen Property;
h.
Any violation of the New York State Alcoholic Beverage Control
Law;
i.
Article 265 of the New York State Penal Law: Firearms and Other
Dangerous Weapons;
j.
Section 270.00 of the New York State Penal Law: Unlawfully Dealing
with Fireworks and Dangerous Fireworks;
k.
Section 415-a of the New York State Vehicle and Traffic Law:
Vehicle Dismantlers;
l.
Section 175.10 of the New York State Penal Law: Falsifying Business
Records;
m.
Possession, use, sale or offer for sale of any alcoholic beverage
in violation of Article 18 of the New York State Tax Law and/or § 260.20
of the Penal Law, or of any cigarette or tobacco products in violation
of Article 20 of the Tax Law and/or Section 260.21 of the Penal Law;
n.
(Reserved)
o.
Article 158 of the New York State Penal Law: Welfare Fraud;
p.
Article 178 of the New York State Penal Law: Criminal Diversion
of Prescription Medications and Prescriptions;
q.
Section 147 of the New York State Social Services Law: Food
Stamp Program Fraud;
r.
Any violation of the New York State Uniform Fire Prevention
and Building Code and the City of Utica's Zoning Ordinance, Property
Conservation Code, Building Code, Electrical Code, Mechanical Code
and Elevator Code which is life threatening and/or necessitates the
declaring of the premises as "unfit for habitation," an "unsafe structure,"
and/or any "unlawful structure";
s.
Article 13-F of the New York State Public Health Law: Regulation
of Tobacco Products and Herbal Cigarettes; Distribution to Minors;
t.
Title 21 of the United States Code Annotated: Food and Drugs;
u.
Title VII of Public Law 109-177: the Combat Methamphetamine
Epidemic Act of 2005;
v.
Section 225 of the New York State Public Health Law, Section
9.2: prohibition on the possession, manufacture, distribution, sale
or offer to sell synthetic phenethylamines and/or synthetic cannabinoids.
w.
Littering in violation of Sections 2-22-31 through 2-22-43 of the Code of Ordinances of the City of Utica, as amended.
(2)
Violations of the following state statutes and rules and regulations
and City of Utica local laws, ordinances and rules and regulations,
which have not resulted in a conviction or judgment, shall be assigned
a point value of three points:
a.
The New York State Uniform Fire Prevention and Building Code
and the City of Utica's Zoning Ordinance, Property Conservation Code,
Building Code, Electrical Code, Mechanical Code and Elevator Code;
b.
Operating a business during hours which the business is required
to be closed pursuant to the State of New York's statutes and rules
and regulations and/or the City of Utica's local laws, ordinances
and rules and regulations;
c.
Littering in violation of Sections 2-22-31 through 2-22-43 of the Code of Ordinances of the City of Utica, as amended.
d.
Noise Control Ordinance violations in contravention of Sections 2-15-56 through 2-15-66 of the Code of Ordinances of the City of Utica, as amended.
e.
Loitering in violation of Section 2-15-45 of the Code of Ordinances of the City of Utica, as amended.
f.
Allowing or permitting the premises to become disorderly, including
allowing or permitting offenses against public order;
(b)
For purposes of this article, in addition to the point system set forth in Section 2-14-350(a), two additional points shall be added to any of the violations specified in Section 2-14-350(a) which have resulted in a conviction and/or judgment in favor of the prosecuting party.
(c)
For purposes of this article, in addition to the point system set forth in Section 2-14-350(a), two additional points shall be added to any of the violations specified in Section 2-14-350(a)(1)(r) every 30 days that the violation remains uncorrected, and one additional point shall be added to any of the violations specified in Section 2-14-350(a)(2)(a) every 30 days that the violations remain uncorrected.
(d)
For purposes of this article, where more than one violation of the state statutes and rules and regulations and City of Utica local laws, ordinances and rules and regulations set forth above in Section 2-14-350(a) occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation.
(e)
Businesses that have a conditional certificate of use shall
be subject to this section, and any points they accumulate prior to
the issuance of the certificate of use shall be carried forward to
such certificate of use.
(f)
Carryover of points. In the event that a business requiring
a certificate of use vacates a premises for any reason and a new business
needing a certificate of use intends to use the same premises, and
there are points associated with the condition of the premises or
building, those points shall carry over to the new business's certificate
of use for the duration of the two-year period from the date the points
were assessed.
(a)
In the event that it shall come to the attention of the director of code enforcement or his/her designee that a business issued a certificate of use pursuant to this article has accumulated as provided by Section 2-14-350 hereof, eight or more points in any six-month period or 12 or more points in any eighteen-month period, the director of code enforcement or his/her designee shall transmit to the owner or the proprietor, where applicable, by certified mail at the address specified in the application for said certificate of use, a letter advising the owner or the proprietor of the number of points accumulated and warning the owner or the proprietor, where applicable, of the possibility of suspension or revocation of the subject certificate of use upon accumulation of the eight or more points in a twelve-month period or 12 or more points in a twenty-four-month period.
(b)
The failure of the director of code enforcement or his/her designee to transmit a warning letter pursuant to Section 2-14-351(a) hereof or the failure of the owner or his/her/their designee, or proprietor, where applicable, to receive a warning letter shall in no event be a defense to suspension or revocation of the certificate of use or criminal or civil penalties or an injunction as provided for in this chapter.
A committee comprised of the Director of Code Enforcement or
his/her designee, the Chief of Police or his/her designee, the Chief
of Fire or his/her designee and the Commissioner of Urban and Economic
Development or his/her designee may promulgate administrative policies
and procedures to carry out and give full effect to the provisions
of this article. A copy of the policies and procedures promulgated
by this committee shall be filed with the Utica City Clerk's Office.
In the event any clause, sentence, paragraph, section or part
of this chapter shall be finally adjudged by a court of competent
jurisdiction to be invalid, unlawful and/or unconstitutional, such
determination shall not affect, impair or invalidate the remainder
thereof but shall be limited to the portion directly involved in the
determination and the remainder of this chapter shall remain in full
force and effect.
In addition to the requirements set forth in Section 2-14-340, officers and employees of any City departments with responsibility to enforce or assist the Director of Code Enforcement in enforcing this article shall have the right of access to any business subject to the terms of this article for the purpose of making an inspection during normal business hours and the City of Utica shall also have the authority to seek inspection warrants where necessary to properly administer this article.
Every year the Director of Code Enforcement or his/her designee
shall prepare and submit to the Common Council an annual report detailing
the number of businesses that have a certificate of use and the number
and names of businesses that have had their certificate of use suspended
and/or revoked pursuant to this article. The annual report should
be transmitted to the Common Council no later than April 1 in the
year in which the annual report is due with the first annual report
being due no later than April 1, 2021.
(a)
Criminal penalties. Any owner or proprietor who, having been
served with a notice or order to correct or remove any violations
of this chapter, fails to comply with such notice or order within
the time period fixed by the Director of Code Enforcement shall be
guilty of an offense, and upon conviction shall be punishable by a
fine of not less than $50 nor more than $150 or imprisonment for not
more than 15 days, or both, for each offense.
(b)
Civil penalty; imposition of cumulative civil penalty. Any owner
or proprietor, having been served with a notice or order to correct
or remove any violation of this article, shall be subject to a cumulative
civil penalty of $100 per day for each separate violation from the
date set for correction in the notice or order until the violation
is corrected. The penalty may be collected by the Corporation Counsel
by action or special proceeding against the owner or proprietor.
(c)
Enforcement of civil penalty.
(1)
The Corporation Counsel may maintain an action or special proceeding
in a court of competent jurisdiction for the recovery of civil penalties,
together with costs and disbursements.
(2)
In addition to any action or special proceeding for civil penalty
as provided in Subsection (c)(1) above, the Corporation Counsel may,
where the owner or proprietor has failed to correct the violation(s)
set forth in any notice or order issued pursuant to this chapter,
bring such action or special proceeding as necessary to enjoin the
owner from continuing to operate or maintain any business in violation
of the terms of this article.
The enforcement by the City of Utica of this article in the
manner provided herein shall not be deemed to limit in any manner
the City of Utica's authority to enforce the provisions of other federal,
state and local laws, ordinances, rules and regulations against businesses
covered by this article.
