ARTICLE I Public Nuisance Abatement

The City Council finds that public nuisances exist in the City of Utica in the operation of certain establishments and in the use of property in flagrant violation of the municipal code and state and local laws and regulations, including but not limited to possession, sale, and use of controlled substances and dangerous drugs, illegal use or possession of weapons, possession of stolen property and laws relating to the sale and consumption of alcoholic beverages, all of which substantially and seriously interfere with the interest of the public and the quality of life and total community environment, commerce in the City, property values and the public health, safety and welfare, particularly as it affects our children and young adults.

The City Council further finds that the continued occurrence of such activities and violations is detrimental to the health, safety and welfare of the people of the City of Utica and of the businesses thereof and the visitors thereto and that the public nuisances frequently exist in properties where the owner is not in residence.

It is the purpose of the Council to create and to empower a Hearing Panel to impose appropriate sanctions and proportional penalties as may serve to eliminate such public nuisances, and it is further intended that the exercise of such powers as are given to the Hearing Panel pursuant to this chapter 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 laws. The Council further finds the sanctions and penalties, which may be imposed by the Hearing Panel pursuant to this chapter, constitute an additional and appropriate method of law enforcement in response to the proliferation of the above-described public nuisances within the City of Utica. The sanctions and penalties which may be imposed are reasonable and necessary in order to promote the health and safety of the people of the City of Utica and to promote the general welfare.

Sec. 2-17-2 Definitions.

As used in this chapter, the following terms shall have the meanings indicated:

ADVERSE IMPACT

Includes, but is not limited to the following: any search warrants served on the property where controlled substances and/or weapons were seized; investigative purchases of controlled substances on or near the property by law enforcement agencies or their agents; arrests for violations of controlled substance law and/or possession of weapons; loitering for the purposes of engaging in illegal activity; an increase in the volume of traffic associated with property; complaints made to law enforcement officials of illegal activity associated with the property, finding of illegal weapons, as defined in § 265 of the Penal Law, or controlled substances, as defined in Articles 220 and 221 of the Penal Law, on or near the property by law enforcement officials and their agents.

BUILDING

A structure wholly or partially enclosed within exterior walls, or within exterior and party walls and a roof. The term "building" shall be construed as if followed by the phrase "or part thereof" unless otherwise indicated by the text.

BUSINESS

An activity, occupation, employment or enterprise which requires time, attention, labor and material and wherein merchandise is exhibited or sold, or services offered.

CONVICTION

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 § 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.

LESSEE

One who has a possessory interest in real or personal property under a lease.

LESSOR OR LANDLORD

One who conveys real or personal property by lease. If the property is real estate, the lessor is referred to as a landlord.

MANAGER

A person who administers or supervises the affairs of a business, office, or other organization.

OPERATOR

A person or company who rents, leases, and managers residential and/or commercial properties.

OWNER

The term "owner," applied to a building or land, shall include any part owner, joint owner, tenant in common, tenant in partnership, joint tenant, or tenant by the entirety, of the whole or of a part of such building or land.

PENAL LAW

New York State Penal Law.

PUBLIC NUISANCE

For purposes of this chapter, the following are declared to be public nuisances: any building, structure, or real property where violations of any of the following provisions of law are occurring and where two or more violations of such provisions result in two or more criminal convictions, within a two-year time period prior to the commencement of a proceeding pursuant to this chapter, or where two or more violations of such provisions occur within a one-year time period prior to the commencement of a proceeding pursuant to this chapter, and activities which create an unreasonable interference with a person's lawful use and enjoyment of their own property due to excessive noise and general disturbance of the peace.

Penal Law articles:

Article 220 (offenses dealing with possession and sale of controlled substances).

Article 222 (offenses dealing with sale and possession of marijuana/cannabis).

Article 225 (offenses dealing with promoting gambling and possession of gambling records).

Article 230 (offenses dealing with prostitution).

Article 235 (offenses dealing with obscenity).

Article 265 (offenses dealing with firearms and possession of other dangerous weapons).

Article 263 (offenses dealing with sexual performance by a child).

Article 178 (offenses dealing with criminal diversion of prescription medications and prescriptions).

Penal Law sections:

Sections 165.15(4), (6), (7) and (8) (offenses dealing with theft of services).

Sections 165.40, 165.45, 165.50, 165.52 and 165.54 (offenses dealing with criminal possession of stolen property).

Sections 260.20 and 260.21 (unlawfully dealing with a child).

Sections 240.36 and 240.37 (loitering in the first degree and loitering for the purpose of engaging in a prostitution offense).

Sections 120.00, 120.02, 120.05, 120.06, 120.07, 120.08, 120.10, 12.11, and 120.12 (offenses dealing with assault).

Sections 240.25, 240.26, 240.30, and 240.31 (offenses dealing with harassment).

Section 240.20 (disorderly conduct).

Section 175.10 (falsifying business records).

Any violation of the Penal Law involving "endangering the welfare of a child" - related to the sale of alcohol to a person under the age of 21 years of age.

(10)

Any violation of Section 65 of the NYS Alcohol Beverage Control law-Prohibited sales of alcohol. No person shall sell, deliver, or give away or cause or permit or procure to be sold, delivered or given away any alcoholic beverages to:

Any person, actually or apparently, under the age of 21 years;

Any visibly intoxicated person;

Any habitual drunkard known to be such to the person authorized to dispense any alcoholic beverages.

Other sections:

Alcoholic Beverage Control Law § 123, illegal manufacture, sale or distribution of liquor, wine or beer.

Tax Law Article 18, possession, use, sale or offer for sale of any alcoholic beverage.

Tax Law Article 20, possession, use, sale or offer for sale of any cigarette or tobacco products.

Social Services Law § 147 (food stamp fraud).

Public Health Law § 3383, imitation controlled substances.

Any violation of the NYS Taxation Law-Section 1814 for possession and sale of untaxed cigarettes and tobacco products.

Any violation of the NYS Alcohol Beverage Control Law for Disorderly Premise, Gambling and Narcotics-Section-106.6.

Any violation of the Public Health Law-Section 1399 for the licensing and sale of tobacco or vape products, herbal cigarettes, liquid nicotine, shisha, rolling papers, or smoking paraphernalia to minors.

Violations SNAP and food stamp fraud and trafficking.

(10)

Any building, structure or real property wherein there exists or has occurred any violation of this Code, including, but not limited to, Chapter 2-5, animals; Chapter 2-29, zoning; Chapter 1-15, offenses; nuisances; and the New York State Uniform Fire Prevention and Building Code, 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.

REAL PROPERTY

The term "real property" shall include lands, tenements and hereditaments.

STRUCTURE

An assembly of materials forming a construction framed of component structural parts for occupancy or use, including buildings.

TENANT OR OCCUPANT

The term "tenant" or "occupant," applied to a building or land, shall include any person holding a written or oral lease or who occupies the whole or a part of such building or land, either alone or with others.

TESTIMONY

Oral, written or other documented evidence tending to show or prove the truth of the matter asserted.

VIOLATION

Conduct, or evidence of conduct, prohibited under the City of Utica Nuisances Law. 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, research 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.

Sec. 2-17-3 Nuisance forbidden.

No owner, operator, manager, tenant, lessee or other occupier of a building, structure or real property shall knowingly conduct, maintain, permit or allow the existence of a public nuisance at the building, structure or real property.

Sec. 2-17-4 Presumption of knowledge.

Notice by first class mail or personal service of activities entailing a public nuisance to the property owner, operator, manager, tenant, lessee, lessor or other occupier of a building, structure or real property shall be prima facie evidence of knowledge of the public nuisance.

Sec. 2-17-5 Evidence and presumptions.

Evidence. The lack of knowledge, acquiescence or participation in or responsibility for a public nuisance on the part of the owners, operators, managers, tenants, lessors or lessees, and all those persons in possession or having charge of, as agent or otherwise, or having any interest in the property, real or personal, used in conducting or maintaining the public nuisance shall not be a defense by such owners, operators, managers, tenants, lessors or lessees, and other persons.

Presumptions for the purposes of this chapter.

The existence of any combination of any of the following: criminal convictions for any of the activities set forth in the definition of a public nuisance in § 2-17-2 at any building, structure or real property within a two-year period prior to the commencement of a civil action and/or an administrative hearing shall be prima facie evidence of the existence of a public nuisance.

The existence of any combination of any of the following: incidents of the following activities at any building, structure or real property within a one-year period prior to the commencement of a civil action and/or an administrative hearing shall be prima facie evidence of the existence of a public nuisance:

Conviction for any of the activities set forth in the definition of a public nuisance in § 2-17-2, occurring on or near the property.

Arrest for any of the activities set forth in the definition of a public nuisance in § 2-17-2, occurring on or near the property.

Service of an accusatory instrument charging any of the activities set forth in the definition of a public nuisance in § 2-17-2, occurring on or near the property. For the purposes of this chapter, an accusatory instrument shall include, but not be limited to, any criminal information, misdemeanor and/or felony complaint filed in a court of competent jurisdiction, and/or, with regard to unfit, unsafe and/or fire damaged structures on or near the property, a notice of violation issued by the Utica Code Enforcement Office, Police or Fire Departments and/or other authorized entity with jurisdiction in the city and/or an order to abate issued by the administrative panel pursuant to §§ 2-17-6 and 2-17-7 of this Code.

Service of a search warrant on the building, structure or real property where controlled substances, marihuana (marijuana), and/or weapons are seized.

Finding of illegal controlled substances or illegal firearms or weapons on the building, structure or real property.

(f)

Investigative purchases of illegal controlled substances on the building, structure or real property by law enforcement agencies or their agents.

Sec. 2-17-6 Administrative hearing.

Hearing panel. There is hereby established, for the purpose of administratively implementing and enforcing the provisions of this chapter, a Public Nuisance Abatement Hearing Panel ("Hearing Panel"). The Hearing Panel shall consist of a member to be appointed by the chief 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 himself/herself or any member of his/her staff to the Hearing Panel.

Administrative hearing. Whenever there is prima facie evidence of a public nuisance at any building, structure or real property within the city, the Corporation Counsel may initiate an administrative hearing.

Service of notice. Prior to the issuance of orders by the Hearing Panel, the Hearing Panel shall give notice and opportunity for a hearing to the owner, and also to any known operator, manager, tenant, lessor and lessee, of a building, structure, or real property wherein the public nuisance is being conducted, maintained or permitted. Such notice shall be served upon an owner pursuant to Article 3 of the Civil Practice Law and Rules, and upon a tenant, lessor or lessee pursuant to § 735 of the Real Property Actions and Proceedings Law. The person in whose name the real estate affected by the order of the Hearing Panel is recorded in the office of the City Assessor shall be presumed to be the owner thereof.

Content of notice. The notice shall allege the facts constituting the public nuisance.

Hearing. At the time and place designated in the notice, the Corporation Counsel or his/her designee shall present all relevant evidence and/or witnesses demonstrating the existence of a public nuisance at the building, structure or real property, and as to appropriate remedies. The owners of the building, structure or real property, or their representatives, shall have the right to examine such evidence and cross-examine any witnesses presented by the Corporation Counsel or his/her designee. The owners of the building, structure or real property, or their representatives, may present any relevant evidence and/or witnesses in their defense. The Corporation Counsel, or his/her designee, shall have the right to examine such evidence and crossexamine any witnesses presented by the owners of the building, structure or real property, or their representatives.

Panel's finding and determination. Within five business days of the hearing, the Hearing Panel shall issue a decision and order.

Sec. 2-17-7 Administrative remedies.

The Hearing Panel, shall have the following powers in furtherance of the abatement of public nuisances:

To order the discontinuance of such activity at the building, structure, or real property where such public nuisance exists; and/or

To order the closing of the building, structure, lot and/or separately identifiable portion thereof necessary to abate the nuisance; and/or to suspend or revoke for a period of up to one year a certificate of occupancy issued for such premises, and to prevent the owner from obtaining a new certificate of occupancy for another location for the period of suspension or revocation; and/or refer to the Codes Department for consideration on whether to issue a new certificate of occupancy in connection of any applicant

To suspend or revoke for a period of up to one year any occupational license or permit issued by the City related to the conduct of a business or trade at the premises, which suspension or revocation shall also apply to any other locations operated by the holder for which the license or permit is required; and/or

To suspend or revoke for a period of up to one year eligibility to secure grants or loans from the City of Utica; and/or

To authorize agents of the City to remove and correct any conditions in violation of this Code. The actual costs of removing and correcting the violations, plus a charge of 50% as compensation to the city for administering, supervising and handling such work, shall be imposed and awarded to the city. The costs of removing and correcting the violations, plus a charge of 50% as compensation to the city for administering, supervising and handling such work, shall constitute a lien against the real property and shall be collected in the same manner provided by law for the collection of real property taxes within the city; and/or

To issue a decision and order directing the payment of a fine 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 fine shall be paid into the general fund of the City; and/or

Any combination of the above.

Service of decision and order. The decision and order shall be served upon the owner, and also upon a known operator, manager, tenant, lessor, and/or lessee, of the building, structure or real property in a manner similar to that described in § 2-17-6(b)(1).

Appeal of Panel's decision and order. Within 30 days of the service of the Hearing Panel's decision and order, the subject owner, or its legal representative, may appeal the decision and order based upon written submission to the Public Safety Commissioner. The Corporation Counsel shall, within 15 days thereafter, submit written opposition to any such appeal. Upon request of either the owner or the Corporation Counsel, an in person conference will be scheduled to hear arguments on the appeal, and will render a final determination within 10 days of that conference or if no conference is requested within 10 days of the Corporation Counsel's written submission opposition to the appeal, and forward same to the parties by certified mail, return receipt requested.

In the absence of an appeal to the Public Safety Commissioner, the Hearing Panel's decision and order is deemed final and binding for all purposes.

Nothing within this chapter shall limit the authority of the Commissioner of Public Safety, Mayor or Mayor's designee, to take such other and further actions deemed necessary to abate any existing public nuisance to the extent necessary to ensure the protection of the health, safety and welfare of the general public.

Sec. 2-17-8 Posting of orders.

Orders of the Hearing Panel issued pursuant to this § 2-17-8 shall be posted at the building, structure, or real property where a public nuisance exists or is occurring in violation of law and shall be mailed and/or personally served, in the same manner as a summons as provided in the Civil Practice Law and Rules, to the owner of record thereof within five business days of the posting.

Five business days after the later of a decision and order of the Hearing Panel, or the final determination of the Public Safety Commissioner, issued pursuant to this chapter, upon the written direction of the Hearing Panel, the police department of the City of Utica is hereby authorized to act upon and enforce such order. Where the Hearing Panel closes a building, structure, or real property pursuant to this chapter, such closing shall be for such period as the Hearing Panel shall direct, but in no event shall the closing be for a period of more than one year from the posting of the order pursuant to this chapter.

A closing directed by the Hearing Panel pursuant to this chapter shall not constitute an act of possession, ownership or control by the City of the closed premises.

Sec. 2-17-9 Conversion of orders to civil judgement.

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the remainder of this chapter and the applications of such provisions to other persons and circumstances shall not be rendered invalid thereby.

The Corporation Counsel may bring a civil proceeding in the name of the City of Utica to convert the Hearing Panel decision and order or, in the event of an appeal, the Public Safety Commissioner final determination, into a civil judgement, within 30 days of the rendition of such decision and order or final determination.

Sec. 2-17-10 Civil remedies for property and building nuisances.

The Corporation Counsel may bring a civil proceeding in the name of the City of Utica for the following types of relief:

Permanent injunction.

Temporary closing order.

Temporary restraining order.

Temporary injunction.

Civil penalties.

Procedure:

The summons. The Corporation Counsel shall name as defendants the building, structure or real property 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 an interest in the property. The summons may also name as defendants any owner, operator, manager, tenant, lessee or other occupier of the building, structure or real property.

The complaint. The Corporation Counsel may bring and maintain a civil proceeding in the name of the City of Utica in any court of competent jurisdiction to permanently enjoin the public nuisance and the persons conducting, maintaining or permitting the public nuisance, as defined in § 2-17-2 of this chapter, from further conducting, maintaining, or permitting the public nuisance in the manner provided within. The owner, operator, manager, tenant, lessor and/or lessee of a building, structure or real property wherein the public nuisance is being conducted, maintained or permitted may be made defendants in the action.

The venue of such action shall be in the county where the public nuisance is being conducted, maintained or permitted.

The existence of an adequate remedy at law shall not prevent the granting of temporary or permanent relief pursuant to this chapter.

The civil action shall be commenced by the filing of a summons and complaint alleging the facts constituting the nuisance.

The complaint shall name as defendants the building, structure or real property 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 possess some part of or an interest in the property.

The complaint may also name as defendants any owner, operator, manager, tenant, lessee or other occupier of the building, structure or real property.

(f)

Any complaint filed under this chapter shall be verified or accompanied by affidavit(s) for purposes of showing that the owner or his/her agent has notice of the nuisance and has had an opportunity to abate the nuisance.

(g)

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.

(h)

The complaint or affidavit shall describe the adverse impact associated with the property on the surrounding neighborhood.

In rem jurisdiction. In rem jurisdiction shall be complete over the building, structure or real property wherein the public nuisance is being conducted, maintained or permitted by affixing the summons to the door of the building, structure or real property 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.

Service of summons on other defendants. Defendant(s), other than the building, structure or real property 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.

Notice of pendency. With respect to any action commenced or to be commenced pursuant to this chapter, the Corporation Counsel may file a notice of pendency pursuant to the provisions of Article 65 of the Civil Practice Law and Rules.

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 Utica Assessor and/or the office of the Oneida County Clerk.

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 real property considered to be a nuisance.

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 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.

Enforcement. A judgment pursuant to this chapter shall be enforced by the City of Utica Police Department and the Office of Corporation Counsel.

Judgment awarding permanent injunction.

If, upon the trial of an action for a public nuisance or upon a motion for summary judgment, a finding is made that defendants have conducted, maintained, permitted or allowed a public nuisance, a permanent injunction may be granted.

A judgment awarding a permanent injunction may prohibit defendants from conducting, maintaining, permitting or allowing the public nuisance.

A judgment awarding a permanent injunction may authorize agents of the City to remove and correct any conditions in violation of this Code. The judgment may further order that the costs of removing and correcting the violations, plus a charge of 50% as compensation to the city for administering, supervising and handling such work, shall be charged against defendants and awarded to the city. The judgment may further order that the costs of removing and correcting the violations, plus a charge of 50% as compensation to the city for administering, supervising and handling such work, shall constitute a lien against the real property and shall be collected in the same manner provided by law for the collection of real property taxes within the city.

A judgment awarding a permanent injunction may direct the closing of the building, structure or real property by the Utica Police Department, Sheriff or City Marshal, to the extent necessary to abate the nuisance, including but not limited to a warrant of eviction and/or authorization to vacate the premises.

A judgment awarding a permanent injunction may direct the Utica Police Department to seize and remove from the building, structure or real property, all material, equipment and instrumentalities used in the creation and maintenance of the public nuisance and shall direct the sale by the Utica Police Department 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.

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 chapter.

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 real property has been directed to be closed in the judgment, the court may vacate the provisions of the judgment that directed the closing of the building, structure or real property.

A closing by the Utica Police Department pursuant to this chapter shall not constitute an act of possession, ownership or control by the Utica Police Department of the closed premises.

Upon the request of the Corporation Counsel or the Commissioner of Public Safety, the City of Utica Police Department shall assist in the enforcement of a judgment awarding a permanent injunction entered in an action brought pursuant to this chapter.

(10)

A judgment rendered awarding a permanent injunction pursuant to this chapter shall be and become a lien upon the building, structure or real property 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 real property is located.

(11)

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.

Preliminary injunction.

Generally. Pending an action for a permanent injunction as provided for in this chapter, the City may apply for 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 the preliminary injunction shall direct a trial of the issues at the earliest possible time. Where 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.

A temporary closing order may be granted pending a hearing for a preliminary injunction where it appears by clear and convincing evidence that a 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 closing order.

A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears by clear and convincing evidence that a nuisance within the scope of this chapter is being conducted, maintained or permitted.

Motion papers for preliminary injunction. The Corporation Counsel shall show, by affidavit and such other evidence as may be submitted, that there is a cause of action for an injunction abating a nuisance within the scope of this chapter.

Enforcement. A preliminary injunction shall be enforced by the Corporation Counsel and the City of Utica Police Department. If the court grants a preliminary injunction, the provisions of this chapter shall be applicable.

Temporary closing order.

If, on a motion for a preliminary injunction pursuant to this chapter, the Corporation Counsel shall show by clear and convincing evidence that a nuisance within the scope of this chapter is being conducted, maintained or permitted and that the public health, safety or welfare immediately requires a temporary closing order, a temporary order closing such part of the building, structure or real property wherein the nuisance is being conducted, maintained or permitted 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 closing order, the court shall hold a hearing for the preliminary injunction.

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.

(f)

Temporary restraining order.

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.

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.

(g)

Temporary closing order; enforcement of temporary restraining order.

If, on motion for a preliminary injunction, the Corporation Counsel submits evidence warranting both a temporary closing order and a temporary restraining order, the court shall grant both orders.

Sec. 2-17-11 Temporary restraining order; defendant's remedies.

Enforcement of temporary closing orders and temporary restraining orders. Temporary closing orders and temporary restraining orders shall be enforced by the Corporation Counsel and the City of Utica Police Department.

(h)

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 situated in and used in conducting, maintaining or permitting a public nuisance within the scope of this chapter and shall enter upon the building, structure or real property for such purpose. Such inventory shall be taken in any manner that 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 and/or utilizing body-worn cameras of law enforcement personnel to capture inventory electronically.

(i)

Closing of premises pursuant to temporary closing orders and temporary restraining orders. The officers serving a temporary restraining order shall, upon service of the order, command all persons present in the building, structure or real property to vacate the premises forthwith. Upon the building, structure or real property being vacated, the premises 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 real property involved. If the fee owner, lessor or lessee is not at the building, structure or real property 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 Oneida County.

(j)

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.

(k)

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.

Temporary restraining order to be vacated; inspection provision.

A temporary restraining order shall be vacated, upon notice to the Corporation Counsel, if the defendant shows by affidavit and such other proof as may be submitted that the public nuisance within the scope of this chapter has been abated. An order vacating a temporary closing order or a temporary restraining order shall include a provision authorizing agencies of the City to inspect the building, structure or real property, which is the subject of an action pursuant to this chapter, periodically without notice, during the pendency of the action, for the purpose of ascertaining whether or not the public nuisance has been resumed. Intentional disobedience of, or resistance to, an inspection provision of an order vacating a temporary restraining order, 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 six months, or by both. The Police Department shall, upon the request of the Corporation Counsel, or upon the direction of the Public Safety Commissioner, assist in the enforcement of an inspection provision of an order vacating a temporary restraining order.

A temporary restraining order may be vacated by the court, upon notice to the Corporation Counsel, when the 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 real property where the public nuisance is being conducted, maintained or permitted or in such other amount as may be fixed by the court. The defendant shall pay to the City, in the event a judgment of permanent injunction is obtained, its actual costs, expenses and disbursements in investigating, bringing and maintaining the action.

Sec. 2-17-12 Right to call for police and emergency assistance; victim protections.

Vacating a temporary 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 to be determined by the court, upon a motion on notice to the Corporation Counsel, a temporary injunction or a temporary restraining order shall be vacated by the court. The provisions of the Civil Practice Law and Rules governing undertakings shall be applicable to this chapter.

Any person who is a victim of domestic violence, as defined in § 459(a) of the Social Services Law, or who otherwise believes they are in need of police or emergency assistance has the right to request such assistance and to be free of any direct or indirect penalty or reprisal for accessing assistance, or because they reside at a property where domestic violence or other law enforcement or emergency response activity occurred. No victim of conduct constituting a public nuisance herein shall be directly or indirectly penalized, or otherwise subject to reprisal by application of the Public Nuisance Abatement Law, including by termination or refusal to renew a tenancy or by eviction. These protections shall also extend to any residential occupant upon whose behalf a third party has called for police or emergency assistance.

Protections afforded by this provision are not applicable to breaches of lease, illicit activities or other violations of law. The protections shall not be deemed to prohibit the City of Utica from enforcing an ordinance or local law, nor restrict a landlord from terminating, evicting or refusing to renew a tenancy, when such action is premised upon grounds other than access of police or emergency assistance or is otherwise premised on conduct unrelated to the residential occupant's status as a target or victim of violence or harm.

Property owners shall be free of penalty for respecting the rights of an occupant to request police or emergency assistance. No landlord or other property owner shall be subject to fines or loss of permits or licenses by the City for failing to penalize or take steps to remove an occupant who has exercised rights under this chapter.

Sec. 2-17-13 Penalties for offenses.

It shall be a misdemeanor for any person to use or occupy or to permit any other person to use or occupy any building, structure, or real property ordered closed by the Hearing Panel, Corporation Counsel or a court of competent jurisdiction. Mutilation or removal of a posted order of the Hearing Panel, Corporation Counsel or a court of competent jurisdiction while it remains in effect, in addition to any other punishment prescribed by law, shall be punishable by a fine of not more than $1,000 or by imprisonment not exceeding 90 days, or both, provided that such order contains therein a notice of such penalty. The Utica Police Department shall, upon the request of the Office of Corporation Counsel, or upon the direction of the Commissioner of Public Safety, assist in the enforcement of this chapter.

Any intentional disobedience or resistance to any provision of the orders and/or injunctions issued by the Hearing Panel, Corporation Counsel or a court of competent jurisdiction pursuant to this chapter, in addition to any other punishment prescribed by law, shall be punishable by a fine of not more than $1,000 or by imprisonment not to exceed six months, or both.

It shall be a violation of this chapter for any person who receives notice of commencement of a summary proceeding pursuant to the Real Property Actions and Proceeding Law issued by an owner of a building, structure or real property in response to notification from the City of Utica of an arrest or conviction of any of the enumerated offenses herein thereafter intentionally to cause damage or intentionally allow others to damage any property, real or personal, of the owner. Such conduct shall be punishable by a fine of not more than $250 or by imprisonment not exceeding 15 days, or both.