[HISTORY Adopted by the Common Council of the City of Oswego 6-10-2002. Amendments noted where applicable.]
The Common Council finds that public nuisances exist in the City of Oswego in the operation of certain establishments and the use of property in flagrant violation of the penal laws of this state and related statutes and ordinances, all of which substantially and seriously interfere with the interests of the public in the quality of life and total community environment, commerce in the City, residential living, property values and the public health, safety and welfare.
The Common Council further finds that while existing laws may be adequate to punish offensive conduct and bring violators into compliance, said laws are not adequate to abate the nuisances created by multiple offenders.
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 Oswego and of the business and residents thereof and the visitors thereto. It is the purpose of this chapter to authorize and empower the Chief of Police to impose and enforce the sanctions of the court 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 pursuant to this chapter constitute an additional and appropriate method of law enforcement in response to the proliferation of the hereafter-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.
[Amended 10-24-2006; 2-26-2007]
For the purposes of this chapter, a public nuisance exists where there exists a series of violations of a designated nuisance offense, as that term is defined in § 170-3 of this chapter, which have resulted in a conviction or series of verifiable violations of any of the following provisions resulting from separate incidents occurring at or on the premises where 12 or more points are accumulated, 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 violations shall be assigned the point value indicated in the definition of "designated nuisance offense" in § 170-3. All accumulated points will be removed upon the sale of the property to a bona fide purchaser for value who is not related to the property owner, or when the City has obtained a remedy pursuant to § 170-5 of this chapter for the public nuisance at such premises.
The Chief of Police or his/her designee shall review all police incidents to determine if points should be assessed to the property where such incident took place. The Chief of Police or his/her designee shall have the authority to refrain from assessing points against the property in circumstances where the offense is not related to the use of the property.
For the purpose of this chapter, a conviction for an offense(s) in a court of competent jurisdiction or an administration 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, 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.
The provisions of this section shall not apply to any federal, state or local government building and/or property, public or private schools, and health-care facilities, including hospitals and nursing homes.
As used in this chapter the following terms shall have the meanings indicated:
- The Chief of Police of the City of Oswego or his/her designee.
- CITY ATTORNEY
- The City Attorney of the City of Oswego or his/her designee.[Amended 10-24-2006]
- Defined and applied in accordance with the provisions of § 1.20 of the Criminal Procedure Law of the State of New York.
- The Common Council of the City of Oswego.
- The department, bureau, division, agency, or person charged
with the enforcement of this chapter.[Added 10-24-2006]
- DESIGNATED NUISANCE OFFENSE
- Any violations of the Penal Law will be assessed points based
upon the severity of the charge. A charge of a violation will be assessed
three points; a charge of a misdemeanor will be assessed four points;
and a charge of a felony will be assessed six points. Violations of
other statutes or ordinances will be assessed points as set forth
herein:[Amended 10-24-2006; 2-26-2007; 4-13-2009]
- The person who is listed as the mortgagee on any unsatisfied or otherwise open mortgage recorded in the Oswego County Clerk's office.
- The person in whose name the real estate affected by the order is recorded as the owner in the office of the Oswego County Clerk.
- The building, place or real property or a portion thereof whereon the public nuisance is being conducted or exists.
In the event that a violation of a designated nuisance offense involving the Code of the City of Oswego is found on any premises, the department identifying the violation shall notify the owner and/or tenant of its findings by department procedure. The first notice shall state the time given to correct, and the followup inspection date if applicable, as well as points to be assessed to the property in case of noncompliance.
If upon followup inspection, the violation(s) of the City Code are found to still exist, the department shall assess the points as defined above and cause the violation to be remedied.
In addition to the enforcement procedures established elsewhere, the Chief or his/her designee, after notice and opportunity for a hearing in front of the City Court Judge, shall be authorized to seek from the City Court Judge:
The Chief or his/her designees shall give notice and opportunity for a hearing to the owner, and any lessees or persons in possession of which he or she shall have knowledge, 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 pursuant to Article 3 of the Civil Practice Law and Rules, 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 of proof of service with the clerk of any court before the hearing.
Such notice shall:
Specify the activities creating the nuisance.
Provide 30 days for elimination of the nuisance in the event that such nuisance is continuing. (Moving the nuisance to another premises owned by the owner does not constitute elimination.)
Inform the person to whom it is directed of his/her right to apply within 10 days for a hearing before the Oswego City Court Judge.
Inform the owner/landlord that, upon the expiration of 30 days after service with no hearing, or upon noncompliance with any written agreement reached at the hearing before the court, the Chief shall act to obtain the remedies as provided by this chapter.
Inform the owner/landlord of his/her obligation to post a copy of the notice within five days, in a conspicuous place so that all occupants entering the premises shall have notice that the public nuisance is being conducted, maintained or permitted on the premises and that, upon 30 days after service of the notice, the City Court may direct the Chief to act to obtain compliance as provided, including, but not limited to, the closing of the premises.
The burden of proof shall be upon the City to prove the existence of a public nuisance as defined in § 170.2, by a preponderance of the evidence.
The owner/landlord has no obligation to offer any evidence at the hearing but may do so.
The hearing shall be conducted under the standard rules of evidence.
Upon conclusion of the fact-finding, the Judge shall issue an order:
Approving any stipulation which may be reached between the parties, provided it meets with the approval of the court; or
Dismissing the proceeding for failure of the City to meet the burden of proof set forth herein.
The lack of knowledge of, acquiescence or participation in or responsibility for a public nuisance on the part of the owners, lessors, lessees, mortgagees and all those persons in possession or having charge of, as agent or otherwise, or having interest in the premises or personal property used in conducting or maintaining the public nuisance shall not be a defense by such owners, lessors and lessees, mortgagees and such other persons. Those individuals designated in § 170-6 who originate a complaint regarding a designated nuisance offense shall not be subject to any fines imposed pursuant to this chapter.
If the City Court grants one or more of the orders contemplated in § 170-5 of this chapter, then the Chief shall post said order(s) on the premises wherein the public nuisance is occurring or has occurred in violation of law and mail a copy of said order(s) within one business day of the posting of said order(s) on the premises to the parties identified 1n § 170-6A. A copy of said order will also be filed with the City Clerk and made available for public inspection.
Five business days after the issuance of an order pursuant to § 170-5 and upon the directive of the court, the Chief and officers of the Oswego Police Department are authorized to act upon and enforce such order.
Where the court closes a premises pursuant to this chapter, such closing shall be for such a period as the court may direct, but in no event shall the closing be for a period of less than six months or more than one year from such issuance of the order pursuant to this chapter. If the owner, lessor, and/or lessee shall file a bond in an amount determined by the court, but which may not exceed the value of the premises ordered to be closed and submit proof satisfactory to the court that the nuisance has been abated and will not be created, maintained or permitted for such period of time as the premises has been directed to be closed by the order of the court, then the court may vacate the provisions of the order that directed the closing of the premises.
Upon receipt of an order declaring a public nuisance case from the Chief, the City Attorney shall commence a civil proceeding against the owner of the premises to affix a civil penalty in the amount of $500 and to collect any costs and expenses incurred by the City of Oswego in obtaining such order and closing the premises.
The judgment in such civil proceeding, in favor of the City, shall establish the civil penalty with costs and disbursements as a lien upon such premises, subject only to taxes, water/sewer assessments, mortgages and mechanic's liens as they may exist thereon prior to the filing of the notice of the civil proceeding.
The City Attorney shall have the power, on ex-parte application to the court, to appoint the City Chamberlain of the City of Oswego to be the receiver of rents and profits of the premises for the purposes of collecting the civil penalty and abating the nuisance. The receiver shall have the powers and duties of a receiver of rents and profits of real estate, provided that the City Attorney shall act as the City Chamberlain's counsel and the receiver shall not be allowed any expenditure for counsel fees. Such receivership shall continue until the amount of such civil penalty and cost of abatement, with interest at the rate of 9% per annum, and the commissions have been fully paid and the nuisance is abated, provided that nothing in this section shall be construed to prevent any prior lienor from applying to the Supreme Court in a proper case for a receiver of the premises.
At any time after the entry of any judgment establishing a lien upon the premises, the City Attorney, on behalf of the Chief, may apply to the court for leave to sell the premises. Upon such application, the court may order the premises sold at public auction, subject to taxes, water/sewer assessments, mortgages and mechanic's liens.
A closing directed by the court pursuant to this chapter shall not constitute an act of possession, ownership or control by the City of the closed premises, and the owner of the property must still maintain the property in good condition, i.e., lawn mowed, snow removal, sidewalks cleared.
It shall be a Class A misdemeanor for any person to use or occupy or to permit any other person to use or occupy any premises or portion thereof ordered closed by the court.
Mutilation or removal of an order posted by the Chief shall be a violation 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.
Intentional disobedience of any provision of the orders issued by the court pursuant to this chapter, in addition to any other punishment prescribed by law, shall be an unclassified misdemeanor punishable by a fine of not more than $500 or by imprisonment not to exceed six months, or both.
The Chief may promulgate rules and regulations to administer and give full effect to the provisions of this chapter.
No officer, agent or employee of the City of Oswego, New York, shall be personally liable for any damage resulting from any official determination, order or action required or permitted in the discharge of his/her duties under this chapter.
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 application of such provisions to other persons and circumstances shall not be rendered invalid thereby.