[Added 5-21-2001 by Ord. No. 10.51.99]
[Amended 12-2-2013 by L.L. No. 5-2013]
The Common Council of the City of Albany finds
that public nuisances exist in the City of Albany 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,
as well as other provisions of state and local law, 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 City, property
values and the public health, safety and welfare. The Common Council
further finds that the occurrence of such activities and violations
is detrimental to the health, safety and welfare of the City of Albany
and of the businesses thereof and visitors thereto. 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 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 Chief pursuant
to this article 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
of Albany and to promote the general welfare.
For the purposes of this article, the following
terms shall have the meanings indicated, unless the context clearly
requires otherwise:
The Chief of Police or his or her designee.
[Added 12-2-2013 by L.L. No. 5-2013]
The person who is listed as the mortgagee on any unsatisfied
or otherwise open mortgage on the premises recorded in the office
of the Albany County Clerk.[1]
The person in whose name the premises affected by an order,
issued in accordance with this article, is recorded as the owner in
the office of the Albany County Clerk.
The building, place or property whereon a public nuisance
is being conducted or exists.
For purposes of this article, a public nuisance
shall be deemed to exist whenever, through violations of any of the
following provisions resulting from separate incidents occurring at
or predicated at events, circumstances or activities occurring on
the premises, 12 or more points are accumulated within a period of
six months, or 18 or more points are accumulated within a period of
12 months, in accordance with the following point system. 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. The following violations shall be assigned the point
value indicated:
Article 220 of the Penal Law (Controlled Substances
Offenses): six points.
Article 221 of the Penal Law (Offenses Involving
Marihuana): six points.
Article 225 of the Penal Law (Gambling Offenses):
six points.
Article 230 of the Penal Law (Prostitution Offenses):
six points.
Sections 165.40, 165.45, 165.50, 165.52 and
165.54 of the Penal Law (Criminal possession of stolen property):
six points.
Sections 65 or 82 of the Alcoholic Beverage
Control Law: six points.
Article 265 of the Penal Law (Firearms and Other
Dangerous Weapons): six points.
Sections 260.20 and 260.21 of the Penal Law
(Unlawfully dealing with a child): six points.
Article 263 of the Penal Law (Sexual Performance
by a Child): six points.
Section 415-a of the Vehicle and Traffic Law
(Vehicle dismantlers): four points.
Section 175.10 of the Penal Law (Falsifying
business records): four points.
Sections 170.65 and 170.70 of the Penal Law
(Forgery of and illegal possession of a vehicle identification number):
four points.
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: four points.
Article 178 of the Penal Law (Criminal Diversion
of Prescription Medications and Prescriptions): four points.
Section 147 of the Social Services Law (Food
Stamp Program fraud): four points.
Operating a business during hours which the business is required to be closed pursuant to Chapter 375 (Unified Sustainable Development Ordinance) of the Code of the City of Albany: four points.
[Amended 10-4-2021 by L.L. No. 18-2021 (Q-2021)]
For purposes of this article, 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 Section
1.20 of the Criminal Procedure Law, in any court of competent jurisdiction,
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.
[1]
Editor’s Note: The former definition of “Commissioner,”
which immediately preceded this definition, was repealed 12-2-2013
by L.L. No. 5-2013.
[Amended 12-2-2013 by L.L. No. 5-2013]
In addition to the enforcement procedures established
elsewhere in this article, the Chief, after notice and opportunity
for a hearing, shall be authorized:
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 State 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.
[Amended 12-2-2013 by L.L. No. 5-2013]
B.
The notice provided for in Subsection A of this section shall:
(1)
Specify the activity creating the public nuisance;
(2)
Provide 30 days for elimination of the public 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;
[Amended 12-2-2013 by L.L. No. 5-2013]
(4)
Inform the owner or any other person directly or indirectly
in control of the premises that upon 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
[Amended 12-2-2013 by L.L. No. 5-2013]
(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
this article, including, but not limited to, closing the premises.
[Amended 12-2-2013 by L.L. No. 5-2013]
The lack of knowledge of, acquiescence or participation
in, or responsibility for a public nuisance on the part of the owner,
mortgagees 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.
[Amended 12-2-2013 by L.L. No. 5-2013]
The Chief shall issue the order provided for in § 255-45 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 persons 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 such 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.
[Amended 12-2-2013 by L.L. No. 5-2013]
C.
Upon receiving a copy of the order issued by the Chief, pursuant to §§ 255-45 and 255-48 of this article, the Corporation Counsel shall maintain a special proceeding to affix a civil penalty in the amount up to $5,000, and to collect any costs and expenses incurred by the City of Albany, in commencing the proceeding, closing the premises and in relocating any occupants on the premises. The Corporation Counsel shall file a notice of pendency of the proceeding in the Albany County Clerk's office.
[Amended 12-2-2013 by L.L. No. 5-2013]
D.
The judgment in such proceeding, in favor of the City
of Albany, shall establish the penalty sued for with costs and disbursements
as a lien upon the premises, subject only to taxes, assessments, water
rates, mortgages and mechanics' liens as they exist thereon.
A.
The Corporation Counsel 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 purposes of collecting the civil penalty established pursuant to § 255-49 of this article, and abating the public nuisance. The receiver shall have the powers, duties, and rights, of a receiver of rents and profits of real estate, as provided by law; provided, however, that the Corporation Counsel shall act as counsel to the receiver, and the receiver shall not be allowed any expenditure for counsel fees, and the receiver's commission shall be no greater than 10% of the receiver's collections 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 City of Albany's liens, with interest at the rate of 9% per annum and the receiver's commissions, have been fully paid and the nuisance abated; provided, further, that nothing in this section 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 Corporation Counsel, on behalf of the
City of Albany, 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.
[Amended 12-2-2013 by L.L. No. 5-2013]
A closing directed by the Chief pursuant to
this article shall not constitute an act of possession, ownership
or control by the City of Albany 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.
[Amended 12-2-2013 by L.L. No. 5-2013]
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.
[Amended 12-2-2013 by L.L. No. 5-2013]
C.
Intentional disobedience of or resistance to any provision
of the order issued by the Chief, in addition to any other punishment
prescribed by law, shall be punishable by a fine of not more than
$500, or imprisonment not exceeding six months, or both.
[Amended 12-2-2013 by L.L. No. 5-2013]
D.
Each day's violation shall constitute a separate offense.
[Amended 12-2-2013 by L.L. No. 5-2013]
The Chief may promulgate such rules and regulations
as may be necessary to carry out the provisions of this article.
Neither the City of Albany, nor any officer,
agent or employee thereof, shall be personally liable for any damage
resulting from any official determination, order or action required
or permitted by or under this article.
For the purposes of this article, references
to the Penal Law, Alcoholic Beverage and Control Law, Vehicle and
Traffic Law, Tax Law and Social Services Law shall mean the laws of
the State of New York.
If any provision of this article or the application
thereof to any person or circumstance is held invalid, the remainder
of this article and the application of such provision to other persons
or circumstances shall not be rendered invalid thereby.
