[HISTORY: Adopted by the Town Board of the
Town of Geddes as indicated in Article histories. Amendments noted
where applicable.]
[Adopted at time of adoption of Code (see
Ch. 1, General Provisions, Art. I)]
A.
Declaration of legislative findings. The Geddes Town
Board finds that public nuisances exist in the Town of Geddes in the
operation of certain establishments and the use of property in flagrant
violation of the penal laws relating to controlled substances, dangerous
drugs, prostitution, stolen property and illegal use or possession
of weapons, all of which substantially and seriously interfere with
the interest of the public in the quality of life and total community
environment, commerce in the town, property values and the public
health, safety and welfare. The Town Board further finds that the
continued occurrence of such activities and violations is detrimental
to the health, safety and welfare of the Town of Geddes and the business
thereof and the visitors thereto.
B.
It is the purpose of this article to authorize and
empower the Chief of Police to impose sanctions and penalties for
such public nuisances, and such power 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 Board further finds that the sanctions and penalties imposed by
the Chief pursuant of 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 town and to promote the general welfare.
As used in this chapter, the following terms
shall have the meanings indicated:
The Town Board of the Town of Geddes.
The Chief of Police of the Town of Geddes.
The person who is listed as the mortgagee of any unsatisfied
otherwise open mortgage on the premises recorded in the Onondaga County
Clerk's Office.
The person in whose name the premises affected by the order
is recorded as the owner in the Onondaga County Clerk's Office.
The building, place or property whereon the public nuisance
is being conducted or exists.
For purposes of this article, is declared to exist when:
A violation of Article 220, 221, 230 or 265
or § 165.40, 165.45, 165.50, 170.65, 170.70 or 175.10 of
the New York State Penal Law, or § 415-a of the New York
Vehicle and Traffic Law or § 65, 82 or 123 of the Alcoholic
Beverage Control Law has resulted in two or more arrests under Article
220, 221, 230 or 265 or § 165.40, 165.45, 165.50, 170.65,
170.70 or 175.10 of the New York State Penal Law, or § 415-a
of the New York State Vehicle and Traffic Law or § 65, 82
or 123 of the Alcoholic Beverage Control Law within the twenty-four-month
period of time prior to the arrest required in § 142-2B
below, where said arrests have been predicated on events, circumstances
or activities on the premises; and
Either one of the following:
An arrest for a violation of Article 220, 221,
230 or 265, or § 165.40, 165.45, 165.50, 170.65, 170.70
or 175.10 of the New York State Penal Law, or § 415-a of
the New York State Vehicle and Traffic Law or § 65, 82 or
123 of the Alcoholic Beverage Control Law, within 120 days prior to
the issuance of notice pursuant to this section, where said arrest
has been predicated on events, circumstances or or activities occurring
on the premises.
Discovery by any law enforcement agency, or
duly authorized agent thereof on the premises, of an illegal weapon,
the possession of which would subject an individual, if prosecuted,
to a conviction under Article 265 of the New York State Penal Law,
a quantity and quality of drug or substance, the amount of which would
subject an individual, if prosecuted, to a conviction of Article 220
or 221 of the New York State Penal Law or stolen property, the possession
of which would subject an individual, if prosecuted, to a conviction
under § 165.40, 165.45, 165.50, 170.65, 170.70 or 175.10
of the New York State Penal Law or of § 415-a of the New
York State Vehicle and Traffic Law, which discovery has not led to
an arrest or conviction, within 120 days prior to the issuance of
notice pursuant of this section.
The Town Attorney of the Town of Geddes.
In addition to the enforcement procedures established
elsewhere in this article, the Chief, after notice and opportunity
for a hearing, shall be authorized to:
A.
Prior to the issuance of an order by the Chief, pursuant
to this article, the Chief shall give notice and opportunity for a
hearing to the owner and any other person directly or indirectly in
control of the premises wherein the public nuisance is being conducted,
maintained or permitted. Such notice and opportunity to be heard may
be given to a mortgagee of the premises. Such notice shall be served
upon an owner or any other person directly or indirectly in control
of the premises pursuant to Article 3 of the New York Civil Practice
Law and Rules, and upon a mortgagee by means of certified mail, return
receipt requested, sent to the mortgagee's last known address, provided
that any service other than delivery to the person to be served shall
be complete immediately upon delivery, mailing or posting without
the necessity of filing proof of service with the Clerk of the Court.
B.
Such notice shall:
(1)
Specify the activity creating the nuisance;
(2)
Provide 30 days for elimination of the nuisance;
(3)
Inform the person to whom it is directed of their
right to apply within 10 days of service of the notice for a hearing
before the Chief;
(4)
Inform the owner or any other person directly or indirectly
in control of the premises that upon the expiration of 30 days after
service without a hearing before the Chief, or upon noncompliance
with any written agreement reached at the hearing, the Chief shall
act to obtain compliance as provided by this article; and
(5)
Inform the owner or any other person directly or indirectly
in control of the premises of the obligation to post a copy of the
notice within five days, in a conspicuous place, so that all premises
occupants and others entering the premises shall have notice that
the public nuisance is being conducted, maintained or permitted on
the premises and that upon expiration of 30 days after service of
the notice, the Chief shall act to obtain compliance as provided in
the article, including, but not limited to, closing the premises.
The lack of knowledge of; acquiescence or participation;
or responsibility for a public nuisance on the part of the owner,
mortgagee or any other person directly or indirectly in control of
the premises, or having any interest in the premises or in any property,
real or personal, used in conducting or maintaining the public nuisance,
shall not be a defense by such owner, mortgagee or other person.
The Chief shall issue the order provided for in § 142-3 of this article by posting said order on the premises wherein the public nuisance is occurring and mailing a copy by first class mail of said order to the owner, mortgagee or any other person directly or indirectly in control of the premises within one business day of the posting of said order on the premises.
B.
Where the Chief closes a premises pursuant to this
section, such closing shall be for a period as the Chief may direct,
but in no event shall the closing be for a period of greater than
one year from the issuance of the order.
C.
Upon receiving a copy of the order issued by the Chief, pursuant to §§ 142-3 and 142-6, the Town Attorney shall maintain a special proceeding to affix a civil penalty in the amount of $500 and to collect any costs and expenses incurred by the Town of Geddes in commencing the proceeding, closing the premises and in relocating any occupants on the premises. The Town Attorney shall file a notice of pendency of the proceeding in the Onondaga County Clerk's Office.
D.
The judgment in such proceeding, in favor of the Town
of Geddes, shall establish the penalty sued for with costs and disbursements
as a lien upon the premises, subject only to taxes, assessment, water
rates, mortgages and mechanics' liens as they exist thereon.
A.
The Town Attorney shall have the power, on ex parte application to any court of competent jurisdiction, to appoint a receiver of rents and profits of the premises for the purpose of collecting the civil penalty established pursuant to § 142-7 and abating the nuisance. The receiver shall have the powers, duties and rights of a receiver of rents and profits of real estate; provided, however, that the Town Attorney shall act as counsel to the receiver and that the receiver shall not be allowed any expenditure for counsel fees, and the receiver's commissions shall be no greater than 10% of the receiver's collection from the premises, which sum shall be full compensation for the receiver's services and those of any agent or agents whom the receiver may retain. The receivership shall continue until the amount of the Town of Geddes' liens, with interest thereon at the rate of 9%, and the receiver's commission have been fully paid and the nuisance abated; provided, further, that nothing in this § 142-8 shall be construed to prevent any prior lienor from applying to a court in a proper case for a receiver of the premises.
B.
At any time after the entry of any judgment establishing
a lien upon the premises, the Town Attorney, on behalf of the Town
of Geddes, may apply to a court for leave to sell the premises. Upon
such application, the court may order the premises sold at public
auction subject to taxes, assessments, water rates, mortgages and
mechanics' liens.
A closing directed by the Chief, pursuant to
this article, shall not constitute an act of possession, ownership
or control by the Town of Geddes of the closed premises.
A.
It shall be a misdemeanor for any person to use or
occupy, or to permit any other person to use or occupy, the premises
or any portion thereof ordered closed by the Chief.
B.
Mutilation or removal of a posted order of the Chief
shall be punishable by a fine of not more than $250 or by imprisonment
not exceeding 15 days, or both, provided that such order contains
therein a notice of such penalty.
C.
Intentional disobedience of or a resistance to any
provision of the order issued by the Chief, in addition to any other
punishment by law, shall be punishable by a fine of not more than
$500 or by imprisonment not exceeding six days, or both.
The Chief may promulgate rules and regulations
to carry out and give full effect to the provision of this article.
Neither the Town of Geddes, nor any officer,
agent or employee of the Town of Geddes shall be personally liable
for any damage resulting from any official determination, order or
action required or permitted by or under this article.
