[HISTORY: Adopted by the Common Council of the City of Fulton 12-14-2021 by L.L. No.
2-2022.[1] Amendments noted where applicable.]
A.
The Common Council finds that public nuisances exist in the City
of Fulton in the operation of certain establishments and the use of
property in flagrant violation of certain Penal Law and City Code
provisions, which nuisances 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.
B.
The Common Council further finds that the continued occurrence of
such activities, violations and attitudes is detrimental to the health,
safety and welfare of the City of Fulton and of the business thereof
and the visitors thereto. It is the purpose of this chapter to authorize
and empower the City to impose sanctions and penalties for such public
nuisances, which 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 such other laws.
The Council further finds that the sanctions and penalties imposed
by the City pursuant to this chapter 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.
This chapter shall be known as the "Property and Building Nuisance
Reform Law."
As used in this chapter, the following terms shall have the
meanings indicated:
A structure where space is covered or enclosed for the use,
shelter, storage or protection of persons, animals, chattel or property
of any kind, and which is permanently affixed to the land.
A building subordinate to the principal building on the lot
and used for purposes which are clearly related but incidental to
that of said principal building.
An activity, occupation, employment or enterprise which requires
time, attention, labor and material and wherein merchandise is exhibited
or sold, or services offered.
A building or portion thereof utilized to accommodate the
activities of a business.
A conviction for an offense in a court of competent jurisdiction
or an administrative bureau shall not be required to prove a violation
under this chapter. 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 § 1.20
of the Criminal Procedure Law, in any court of competent jurisdiction,
or a plea of guilty 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.
Notwithstanding the provisions of Subsection A above, under no circumstances shall a conviction or a plea of guilty constitute a violation under this chapter where said conviction or plea stemmed from a crime or City Code violation committed at the building, property or place in issue, where such crime or violation was first reported by an owner or tenant of the property, place, building or, in the case of a multiunit building, the specific building unit where the crime occurred, nor shall a conviction or a plea of guilty constitute a violation under this chapter where said conviction or plea stemmed from a domestic violence-related incident that occurred at the building unit, building, property or place in issue, which domestic violence-incident was first reported by the victim thereof.
Actions, behavior, or conduct by person or persons at a particular
location that disturbs the peace.
Notice by mail or personal service of activities detailing
a public nuisance to the property owner of record shall be evidence
of knowledge of the public nuisance. Additionally, any specific presumption
of knowledge established by the Penal Law shall be applicable to this
chapter provided that the type of offense to which the statutory presumption
applies constitutes a points-bearing violation under this chapter.
A parcel of land with or without buildings or structures
delineated by lot line and having access to a street as defined in
this chapter.
New York State Penal Law.
The building, place or real property whereon the public nuisance
is being conducted or exists.
For the purposes of Article II of this chapter, a public nuisance shall be deemed to exist whenever, through violations of any of the laws or regulations or commission of any of the offenses listed in Subsection C below, the building, property or place in issue, or immediately adjacent to the building, property or place in issue accumulates 12 or more points within a period of six months or 18 or more points within a period of 12 months in accordance with the point system described in the said Subsection C. 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. All references to statutes and codes in Subsection C below shall mean the statute or code provision in effect at the time this chapter is adopted and as may be amended from time-to-time.
Notwithstanding any contrary provisions of this chapter, under
no circumstances shall points accumulate toward a public nuisance
determination where violations are discovered during the course of
an investigation by law enforcement or code enforcement personnel
in response to a request for assistance by an owner or tenant of the
property, place, building or, in the case of a multiunit building,
the specific building unit where the violation occurred, nor shall
points accumulate toward a public nuisance determination where violations
are discovered during the course of such an investigation in connection
with a report of a domestic violence-related incident at the building
unit, building, property or place in issue, where the victim of said
domestic-violence related incident made the request for assistance.
Violations are assigned point values as follows:
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of two points:
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of four
points:
Disorderly conduct by an individual or individuals.
Chapter 475 of the Code of the City of Fulton - Property Conservation, or the New York State Property Maintenance Code. Each repeat offense constitutes an additional violation and warrants the assessment of an additional four points.
Chapter 601 of the Code of the City of Fulton - Vehicles, Abandoned. Each repeat offense constitutes an additional violation and warrants the assessment of an additional four points.
Article 225 of the Penal Law - Gambling Offenses.
The Alcoholic Beverage Control Law.
Chapter 210 of the Code of the City of Fulton - Alcoholic Beverages.
Section 415-a of the Vehicle and Traffic Law - Vehicle Dismantlers.
Sections 170.65 and 170.70 of the Penal Law - Forgery/Illegal
Possession of a Vehicle Identification Number.
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.
Article 222 of the Penal Law - Cannabis.
The Agriculture and Markets Law.
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of six points:
Article 178 of the Penal Law - Criminal Diversion of Prescription
Medications and Prescriptions.
Article 220 of the Penal Law - Controlled Substances Offenses.
Sections 165.15, (6), (7), and (8), 165.40, 165.45, 165.50,
165.52, 165.54, 165.71, 165.72 and 165.73 of the Penal Law - various
theft-related offenses.
Article 158 of the Penal Law - Welfare Fraud.
Section 147 of the Social Services Law - Misuse of Food Stamps.
Section 2024 of Title 7 of the United States Code - Illegal
Use of SNAP benefits.
Allowing persons in/on the building, property or place in issue
in excess of occupancy limits established by the New York State Uniform
Building and Fire Prevention Code.
Section 3383 of the Public Health Law - Imitation Controlled
Substances.
Chapter 197 of the Code of the City of Fulton - Adult Entertainment Businesses.
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of 10 points:
Article 230 of the Penal Law - Prostitution Offenses.
Article 235 of the Penal Law - Obscenity and Related Offenses.
Article 265 of the Penal Law - Firearms and other Dangerous
Weapons.
Sections 260.20 and 260.21 of the Penal Law - Unlawfully Dealing
with a Child.
Article 263 of the Penal Law - Sexual Performance by a Child.
Loitering for the purpose of engaging in a prostitution offense.
Violations of the following laws and regulations and commission
of the following offenses shall be assigned a point value of 12 points:
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Penal Law violations considered to be more serious than those enumerated in Subsection C(4), including but not limited to murder, attempted murder, felony assault, felony attempted assault, felony arson, felony attempted arson, felony sex offenses, felony attempted sex offenses and felony crimes related to the unlawful manufacture of methamphetamine.
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Oral, written or other documented evidence tending to show
or prove the truth of the matter asserted.
Conduct, or evidence of conduct, prohibited under this chapter.
A violation does not require criminal prosecution and conviction but
only a preponderance of evidence that the prohibited conduct is occurring
or has occurred. Evidence of prohibited conduct may include, but is
not limited to, police reports, investigative reports, execution of
search warrants, results of police surveillance, arrest and/or conviction
of local and state and federal laws, activities associated with trafficking
of controlled substances, finding of weapons and/or controlled substances
on or near the property, increased volume of traffic associated with
the property. Notwithstanding the foregoing, evidence obtained during
the course of responding to a request for assistance made by an owner
or tenant of the at issue property, place, building or, in the case
of a multiunit building, the specific building unit where the violation
occurred, shall not constitute evidence of prohibited conduct under
this chapter.
An open area on a lot which is open to the sky and that is unoccupied by any land use or activity except as may otherwise be provided in Chapter 640, Zoning, of the Code of the City of Fulton.
A.
Evidence. In any action under this chapter, evidence in admissible
form of the common fame and general reputation of the building, structure
or place, of the inhabitants or occupants thereof, or of those resorting
thereto, shall be competent evidence to prove the existence of a property
or building nuisance.
B.
Scienter. Admissible evidence of the general reputation of the building,
structure or place, or of the inhabitants or occupants thereof shall
be prima facie evidence of knowledge the nuisance and acquiescence
and participation therein and responsibility therefor, on the part
of the owners, lessors, lessees, and all those in possession of or
having charge of, as agent or otherwise, or having any interest in
any form in the property, real or personal, used in conducting or
maintaining the property or building nuisance.
This article shall be applicable to all public nuisances as determined in accordance with the definitions contained in Article I of this chapter.
B.
Summons. The Attorney for the City shall name as defendants the building,
structure or place wherein the public nuisance is being conducted,
maintained or permitted by describing it by Tax Map number and/or
street address and at least one of the owners of some part of or interest
in the property.
C.
Complaint.
(1)
The Attorney for the City shall bring and maintain a civil proceeding in the name of the City of Fulton in the Supreme Court of Oswego County or any other court of competent jurisdiction to permanently enjoin the public nuisance and the persons conducting, maintaining or permitting the public nuisance as defined in Article I of this chapter from further conducting, maintaining, or permitting the public nuisance in the manner provided in Article II of this chapter. The owner, operator, and/or lessee of a building, structure or place wherein the public nuisance is being conducted, maintained or permitted may be made defendants in the action.
(2)
The venue of such action shall be in the county where the public
nuisance is being conducted, maintained or permitted.
(3)
The existence of an adequate remedy at law shall not prevent the
granting of temporary or permanent relief pursuant to this chapter.
(4)
The civil action shall be commenced by the filing of a summons and
complaint alleging the facts constituting the public nuisance.
(5)
The complaint shall name as defendants the building, structure or
place wherein the nuisance is being conducted, maintained or permitted
by describing it by Tax Map number and/or street address and at least
one of the owners who possesses some part of or an interest in the
property.
(6)
Any complaint filed under this chapter shall be verified or accompanied
by an affidavit(s) for purposes of showing that the owner or his or
her agent has notice of the nuisance and has had an opportunity to
abate the nuisance. The Attorney for the City will give the owner
and any designated property manager written notice of the nuisance
and 10 business days to personally meet with and provide to the Attorney
for the City a written plan to abate the nuisance within 30 days.
If part of the plan to abate the nuisance is to evict a tenant, then
the owner will commence the eviction proceeding within 10 business
days from the meeting with the Attorney for the City, or on the earliest
possible date allowed by law, if such date is longer than 10 business
days from the date of said meeting. The complaint or affidavit shall
contain a description of the attempts by the applicant to notify and
locate the owner of the property and/or the owner's agent. The
complaint or affidavit shall describe the factual circumstances giving
rise to the determination that the property constitutes a public nuisance.
D.
In rem jurisdiction over building, structure, or place. In rem jurisdiction
shall be complete over the building, structure or place wherein the
public nuisance is being conducted, maintained or permitted by affixing
the summons to the door of the building, structure or place and by
mailing the summons by certified or registered mail, return receipt
requested, to one of the owners who possesses some part of or an interest
in the property. Proof of service shall be filed within two days thereafter
with the Clerk of the court designated in the summons. Service shall
be complete upon such filing.
E.
Service of summons on other defendants. Defendant(s), other than
the building, structure or place wherein the public nuisance is being
conducted, maintained or permitted, shall be served with the summons
as provided in the Civil Practice Law and Rules.
F.
Notice of pendency. With respect to any action commenced or to be
commenced pursuant to this chapter, the City may file a notice of
pendency pursuant to the provisions of Article 65 of the Civil Practice
Law and Rules.
G.
Presumption of ownership. The owner of the real estate affected by
the action shall be presumed to be the person in whose name the real
estate is recorded in the office of the City of Fulton Assessor and/or
the office of the Clerk of the County of Oswego.
H.
Presumption of employment or agency. Whenever there is testimony
that a person was the manager, operator, supervisor, or in any other
way in charge of the premises at the time a public nuisance was being
conducted, maintained or permitted, such evidence shall be presumptive
that he or she was an agent or employee of the owner or lessee of
the building, structure or place considered to be a nuisance.
I.
Penalty. If, upon the trial of an action under this chapter or upon a motion for summary judgment in an action under this chapter, a finding is made that the defendant has conducted, maintained or permitted a public nuisance defined in Article I of this chapter, a penalty may be awarded in an amount not to exceed $1,000 for each day it is found that the defendant conducted, maintained or permitted the public nuisance after notice to abate has been given by the City. Upon recovery, such penalty shall be paid into the general fund of the City.
J.
Enforcement. A judgment pursuant to this chapter shall be enforced
by the Code Enforcement Department and the office of the Attorney
for the City.
A.
A judgment awarding a permanent injunction, pursuant to this chapter,
may direct the City of Fulton to seize and remove from the building,
structure or place all material, equipment and instrumentalities used
in the creation and maintenance of the public nuisance and shall direct
the sale by the City of Fulton of such property in the manner provided
for the sale of personal property under execution pursuant to the
provisions of the Civil Practice Law and Rules. The net proceeds of
any such sale, after deduction of the lawful expenses involved, shall
be paid into the general fund of the City.
B.
A judgment awarding a permanent injunction pursuant to this chapter
may authorize agents of the City to remove and/or correct violations
of the City Code. Any and all costs associated with said removal or
repairs shall become a lien against the property and shall have priority
over any prior mortgage or other lien that exists on said property,
except tax and assessment liens and any nuisance abatement lien.
C.
A judgment awarding a permanent injunction, pursuant to this chapter, may direct the closing of the building, structure or place by the City of Fulton, to the extent necessary to abate the nuisance, and shall direct the City to post a copy of the judgment and a printed notice of such closing conforming to the requirements of § 435-8H of this chapter. Any person who defaces, destroys or removes such a posted judgment or notice while it remains in force, in addition to any other punishment prescribed by law, shall be guilty of a violation punishable by a fine of not more than $250 or by imprisonment not exceeding 15 days, or by both, provided such judgment contains therein a notice of such penalty.
D.
The closing directed by the judgment shall be for such period as
the court may direct, but in no event shall the closing be for a period
of more than one year from the posting of the judgment provided for
in this section.
E.
If the owner shall file a bond in the value of the property ordered
to be closed and submits proof to the court that the nuisance has
been abated and will not be created, maintained or permitted for such
period of time as the building, structure or place has been directed
to be closed in the judgment, the court may vacate the provisions
of the judgment that direct the closing of the building, structure
or place.
F.
A closing by the City pursuant to a judgment providing for the closing
of a building shall not constitute an act of possession, ownership
or control by the City of Fulton of the closed premises.
G.
Intentional disobedience or resistance to any provision of a judgment
awarding a permanent injunction pursuant to this chapter, in addition
to any other punishment prescribed by law, shall be punishable by
a fine of not more than $5,000, imprisonment not exceeding six months,
or both.
H.
Upon the request of the Attorney for the City or the Mayor of the
City, the City of Fulton Police Department shall assist in the enforcement
of a judgment awarding a permanent injunction entered in an action
brought pursuant to this chapter.
I.
A judgment rendered awarding a permanent injunction pursuant to this
chapter shall be and become a lien upon the building, structure or
place named in the complaint in such action, such lien to date from
the time of filing a notice of liens pending in the office of the
Clerk of the county wherein the building, structure or place is located.
Every such nuisance abatement lien shall have priority over any mortgage
or other lien that exists prior to such filing except tax and assessment
liens.
J.
A judgment awarding a permanent injunction pursuant to this chapter
shall provide, in addition to the costs and disbursements allowed
by the Civil Practice Law and Rules, upon satisfactory proof by affidavit
or such other evidence as may be submitted, the actual costs, expenses
and disbursements of the City in investigating, bringing and maintaining
the action.
A.
Preliminary injunction.
(1)
Pending an action for a permanent injunction as provided for in this
article, the court may grant a preliminary injunction enjoining a
public nuisance within the scope of this chapter and the person or
persons conducting, maintaining or permitting the public nuisance
from further conducting, maintaining or permitting the public nuisance.
An order granting a preliminary injunction shall direct a trial of
the issues at the earliest possible time. Where a preliminary injunction
has been granted, the court shall render a decision with respect to
a permanent injunction at its earliest convenience after the conclusion
of the trial.
(2)
Enforcement of preliminary injunction. A preliminary injunction shall
be enforced by the Attorney for the City and the City of Fulton Police
Department.
(3)
Preliminary injunctions, inventory, closing of premises, posting
of order and notices, offenses. If the court grants a preliminary
injunction, the provisions of this article shall be applicable.
B.
Motion papers for preliminary injunction. The Attorney for the City
shall show, by affidavit and such other evidence as may be submitted,
that there is a cause of action for a permanent injunction abating
a nuisance within the scope of this chapter.
C.
Temporary closing order.
(1)
If, on a motion for a preliminary injunction pursuant to this section,
the Attorney for the City shall show by clear and convincing evidence
that a public nuisance within the scope of this chapter is being conducted,
maintained or permitted and that the public health, safety or welfare
requires an immediate, temporary closing order, the court may issue
without notice a temporary order closing only so much of the building,
structure or place as is necessary to temporarily abate the nuisance
that is being conducted, maintained or permitted, pending a subsequent
order of the court granting or denying the preliminary injunction.
Upon granting a temporary closing order, the court shall direct the
holding of a hearing for the preliminary injunction at the earliest
possible time; a decision on the motion for a preliminary injunction
shall be rendered by the court at the earliest possible time thereafter.
(2)
Service of temporary closing order. Unless the court orders otherwise,
a temporary closing order, together with the papers upon which it
was based and a notice of hearing for the preliminary injunction,
shall be personally served, in the same manner as a summons as provided
in the Civil Practice Law and Rules.
D.
Temporary restraining order.
(1)
A temporary restraining order may be granted pending a hearing for
preliminary injunction where it appears by clear and convincing evidence
that a public nuisance within the scope of this chapter is being conducted,
maintained, or permitted and that the public health, safety, or welfare
immediately requires the granting of a temporary restraining order.
This order shall restrain the defendants and all persons from removing
or transferring off the property or in any manner interfering with
the fixtures and movable property used in conducting, maintaining
or permitting the public nuisance and from further conducting, maintaining
or permitting the public nuisance. A temporary restraining order may
be granted without notice, pending order of the court granting or
refusing the preliminary injunction and until further order of the
court. Upon granting a temporary restraining order, the court shall
direct the holding of a hearing for the preliminary injunction.
(2)
Service of temporary restraining order. Unless the court orders otherwise,
a temporary restraining order and the papers upon which it was based
and a notice of hearing for the preliminary injunction shall be personally
served in the same manner as a summons as provided in the Civil Practice
Law and Rules.
E.
Temporary closing order; temporary restraining order.
(1)
If, on motion for a preliminary injunction, the Attorney for the
City submits evidence warranting both a temporary closing order and
a temporary restraining order, the court shall grant both orders.
(2)
Enforcement of temporary closing orders and temporary restraining
orders. Temporary closing orders and temporary restraining orders
shall be enforced by the Attorney for the City and the City of Fulton
Police Department.
F.
Inventory upon service of temporary closing orders and temporary
restraining orders. The officers serving a temporary restraining order
shall forthwith make and return to the court an inventory of personal
property used in conducting, maintaining or permitting a public nuisance
within the scope of this chapter and shall enter upon the building,
structure or place for such purpose. Such inventory shall be taken
in any manner which is deemed likely to evidence a true and accurate
representation of the personal property subject to such inventory,
including, but not limited to, photographing such personal property.
G.
Closing of premises pursuant to temporary closing orders and temporary
restraining orders. The officers serving a temporary closing order
and/or a temporary restraining order shall, upon service of the order,
command all persons present in the portion of the building, property
or place that is subject to the order to vacate the premises forthwith.
Upon the vacation of the relevant portion of the building, property
or place, the portion of said building, property or place shall be
securely locked and all keys delivered to the officers serving the
order who thereafter shall deliver the keys to the fee owner, lessor
or lessee of the building, structure or place involved. If the fee
owner, lessor or lessee is not at the building, structure or place
when the order is being executed, the officers shall securely padlock
the premises and retain the keys until the fee owner, lessor or lessee
of the building is ascertained, at which time, the officers shall
deliver the keys to such owner, lessor or lessee, if such individual
resides within Oswego County.
H.
Posting of temporary closing orders and temporary restraining orders.
Upon service of a temporary restraining order, the officer shall post
a copy thereof in a conspicuous place or upon one or more of the principal
doors at entrances of such premises where the public nuisance is being
conducted, maintained or permitted. In addition, where a temporary
restraining order has been granted, the officers shall affix, in a
conspicuous place or upon one or more of the principal doors at entrances
of such premises, a printed notice that shall state that certain described
activity is prohibited by court order and that removal of property
is prohibited by court order. If the temporary restraining order directs
that the premises are to be closed by court order, the notice shall
contain the legend "Closed by Court Order" in block lettering of sufficient
size to be observed by anyone intending or likely to enter the premises,
the date of the order, the court from which issued and the name of
the office or agency posting the notice. Any person who defaces, destroys
or removes such a posted order or notice while it remains in force,
in addition to any other punishment prescribed by law, shall be punishable,
on conviction, by a fine of not more than $1,000 or by imprisonment
not exceeding 90 days, or by both, provided such order or notice contains
therein a notice of such penalty. The City of Fulton Police Department
shall, upon the request of the Attorney for the City or the Mayor
of the City, assist in the enforcement of this subsection.
I.
Intentional disobedience of or resistance to temporary restraining
order or injunction. Intentional disobedience of, or resistance to,
a temporary restraining order, preliminary or permanent injunction
shall, in addition to any other punishment prescribed by law, be punishable,
on conviction, by a fine of not more than $5,000 or by imprisonment
not exceeding six months, or by both.
J.
Temporary restraining order or preliminary injunction bond required.
A temporary restraining order or preliminary injunction shall not
issue under this chapter, except upon the giving of a bond or security
by the applicant, in the amount of $1,000, for the payment of such
costs and damages as may be incurred or suffered by any party who
is found to be wrongfully restrained or enjoined. A bond or security
shall not be required of the State of New York, municipal corporations,
or political subdivisions of the State of New York.
A.
Temporary restraining order to be vacated; inspection provision.
(1)
A temporary restraining order may be vacated by the court upon notice
to and right to object by the Attorney for the City when a defendant
gives an undertaking and the court is satisfied that the public health,
safety or welfare will be protected adequately during the pendency
of the action. The undertaking shall be in an amount equal to the
assessed valuation of the building, structure or place where the public
nuisance is being conducted, maintained or permitted or in such other
amount as may be fixed by the court. In the event the court should
issue a permanent injunction against defendant(s), he/she/they shall
pay to the City its actual costs, expenses and disbursements in investigating,
bringing and maintaining the action.
(2)
An order vacating a temporary closing order or a temporary restraining
order shall include a provision authorizing the City or its authorized
officers, agents or representatives to periodically inspect, without
notice, the subject building, structure or place, during the pendency
of the action, for the purpose of ascertaining whether or not the
public nuisance has been resumed.
(3)
Willful failure to cooperate with an inspection provision of an order
vacating a temporary restraining order or temporary closing order,
in addition to any other punishment prescribed by law, shall be punishable
on conviction by a fine of not more than $5,000, imprisonment not
exceeding six months, or both. The City of Fulton Police Department
shall, upon the request of the City, assist in the enforcement of
an inspection provision of an order vacating a temporary restraining
order or temporary closing order.
B.
Vacating a preliminary injunction or a temporary restraining order.
When the defendant gives an undertaking in the amount of the civil
penalty demanded in the complaint, together with costs, disbursements
and the projected annual costs of the prosecution of the action, as
determined by the court, upon a motion on notice to the Attorney for
the City, a temporary injunction or a temporary restraining order
may be vacated by the court. The provisions of the Civil Practice
Law and Rules governing undertakings shall be applicable to this chapter.
A.
Generally, pending an action pursuant to this chapter, the court
may grant a preliminary injunction enjoining a defendant from making
a bulk transfer as defined in this section.
B.
If, on a motion for a preliminary injunction of a bulk transfer, the Attorney for the City shall show by clear and convincing evidence that a public nuisance within the scope of this chapter is being conducted, maintained or permitted, a temporary restraining order may be granted without notice restraining the defendants and all persons from making or permitting a bulk transfer as defined in this article pending order of the court granting or refusing the preliminary injunction and until further order of the court. Application for such a temporary restraining order shall be made pursuant to § 435-8 of this article.
C.
"Bulk transfer" defined. A bulk transfer is any transfer of a major
part of the materials, supplies, merchandise or other inventory or
equipment of the transferor in the building, structure or place where
the public nuisance is being conducted, maintained or permitted that
is not in the ordinary course of the transferor's business.
D.
Enforcement of preliminary injunction. A preliminary injunction shall
be enforced by the Attorney for the City and the City of Fulton Police
Department.
A.
Appointment, duration and removal. In any action wherein the complaint
alleges that the public nuisance is being conducted or maintained
in the residential portions of any building or structure or portion
thereof which are occupied in whole or in part as the home, residence
or sleeping place of one or more human beings, the court may, upon
motion on notice by the plaintiff, appoint a temporary receiver to
manage and operate the property during the pendency of the action
in lieu of a temporary closing order. A temporary receivership shall
not continue after final judgment unless otherwise directed by the
court. Upon the motion of any party, including the temporary receiver,
or on its own initiative, the appointing court may remove a temporary
receiver at any time.
B.
Powers and duties. The temporary receiver shall have such powers
and duties as the court shall direct, including, but not limited to,
collecting and holding all rents due from all tenants, leasing or
renting portions of the building or structure, making or authorizing
other persons to make necessary repairs or to maintain the property,
hiring security or other personnel necessary for the safe and proper
operation of a dwelling, prosecuting or defending suits flowing from
his or her management of the property and retaining counsel therefor,
and expending funds from the collected rents in furtherance of the
foregoing powers.
C.
Oath. A temporary receiver, before entering upon his or her duties,
shall be sworn or shall affirm faithfully and fairly to discharge
the trust committed to such receiver. The oath or affirmation may
be waived upon consent of all parties.
D.
Undertaking. A temporary receiver shall give an undertaking, in an
amount to be fixed by the court making the appointment that such receiver
will faithful discharge his or her duties.
E.
Accounts. A temporary receiver shall keep written accounts itemizing
receipts and expenditures, and describing the property and naming
the depository of receivership funds, which shall be open to inspection
by any person having an apparent interest in the property. Upon motion
of the temporary receiver, or of any person having an apparent interest
in the property, the court may require the keeping of particular records,
or direct or limit inspection, or require presentation of a temporary
receiver's accounts. Notice of motion for the presentation of
a temporary receiver's accounts shall be served upon the sureties
on the temporary receiver's undertaking as well as upon each
party.
This chapter shall not be construed to exclude any other remedy
provided by law for the protection of the health, safety and welfare
of the people of the City of Fulton.
