[HISTORY: Adopted by the City Council of
the City of Auburn 2-27-1997 by Ord. No. 10-1997. Amendments noted
where applicable.]
This chapter shall be known and cited as the
"City of Auburn Abatement of Nuisances Ordinance."
A.
The City Council finds that public nuisances exist
in the City of Auburn in the operation of certain establishments in
the use of property in flagrant violation of state and local laws
pertaining 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.
B.
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 Auburn 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.
C.
It is the purpose of the Council to create and to
empower a Nuisance Abatement Committee 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 Nuisance Abatement Committee 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 Nuisance Abatement
Committee 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 Auburn. 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
Auburn and to promote the general welfare.
[Added 5-27-2004 by Ord. No. 7-2004[1] ]
As used in this chapter, the following terms
shall have the meanings indicated:
A structure used or occupied as an adjunct of, or in conjunction
with, the use or occupancy of premises, or a building or buildings
thereon, and which is located on the premises or adjacent thereto.
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.
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.
An activity, occupation, employment or enterprise which requires
time, attention, labor and material and wherein merchandise is exhibited
or sold, or services offered.
Any office use not satisfying the definition of "professional
office" or "medical office" shall be considered a business office
for purposes of this chapter.
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.
[Amended 11-3-2005 by Ord. No. 15-2005]
The presumption of knowledge provided by Subdivision 1 of
§ 235.10 of the Penal Law shall be applicable to this chapter.
Notice, by mail or personal service, of activities relating to a public
nuisance, to the property owner of record shall be evidence of knowledge
of the public nuisance.
A piece or parcel of land occupied or intended to be occupied
by a principal building or a group of such buildings and accessory
buildings or utilized for a principal use and uses accessory or incidental
to the operation thereof, together with such open spaces as are required
by this chapter, and having frontage on a public street.
New York State Penal Law.
For purposes of this chapter, the following are declared
to be public nuisances: any building, structure, lot, site or separately
identifiable portion thereof 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 twelve-month 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.
[Added 11-3-2005 by Ord. No. 15-2005; amended 10-7-2010 by Ord. No. 11-2010]
Penal Law articles:
Article 220 (offenses dealing with possession
and sale of controlled substances).
Article 221 (offenses dealing with sale and
possession of marijuana).
Article 225 (offenses dealing with promoting
gambling and possession of gambling records).
Article 230 (offenses dealing with prostitution).
Article 265 (offenses dealing with firearms
and possession of other dangerous weapons).
Article 158 (offenses dealing with welfare fraud).
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), 165.40,
165.45, 165.50, 165.52, 165.54, 165.71, 165.72 and 165.73 (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).
Section 170.65 (forgery of vehicle identification
numbers).
Section 170.70 (possession of vehicle identification
numbers).
Section 175.10 (falsifying business records).
Other sections:
Vehicle and Traffic Law § 415-a, illegal
dismantling of junk and/or salvaged vehicles.
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
program fraud.
Public Health Law § 3383, imitation
controlled substances.
Agriculture and Markets Law.
Miscellaneous:
Suffering or permitting the premises to become
disorderly, including suffering or permitting fighting or lewdness.
Operating a business at the premises in a manner
which causes it to be a source of disruption for the neighborhood
and/or a focal point of police attention.
Activities which result in numerous police investigations within
a six-month period of time.
[Added 10-7-2010 by Ord. No. 11-2010]
Permitting situations or conditions which allow rodents, insects
and other vermin to live on or in real property and/or failing to
take reasonable actions to abate, eliminate and/or exterminate rodents,
insects, and other vermin when the landowner, occupant or user of
such real property becomes aware or should have known of the existence
of such rodents, insects and vermin infestation. It is the intention
of this section to declare rodent, insect, and vermin infestation
as a public nuisance and to take whatever actions are permitted to
declare those persons responsible for the infestation, including but
not limited to occupants, owners, or any other entity occupying said
real property.
[Added 10-17-2013 by Ord.
No. 11-2013]
Operating an unlicensed business. Operating a business for which
a license is required by federal, state or local government without
having obtained such a license, or, if such license was initially
obtained but has since been revoked or lapsed, operating a business
in the absence of such required license.
[Added 2-16-2023 by Ord. No. 1-2023]
It shall be prima facie evidence that violations
are occurring where an arrest for a violation of any of such provisions
has been made within 30 days prior to the issuance of notice pursuant
to this chapter.
A place, location, or piece of property set aside for a specific
use.
An assembly of materials forming a construction framed of
component structural parts for occupancy or use, including buildings.
Oral, written or other documented evidence tending to show
or prove the truth of the matter asserted.
Conduct, or evidence of conduct, prohibited under the City
of Auburn 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.
An open space, as may be required by this chapter, on the
same lot with a building or a group of buildings, which open space
lies between the principal building or group of buildings and the
nearest lot line and is unoccupied and unobstructed from the ground
upward except as specified elsewhere in this chapter.
[1]
Editor's Note: This ordinance also renumbered
former §§ 213-3 through 213-9 as 213-4 through 213-10,
respectively.
[Added 11-3-2005 by Ord. No. 15-2005[1]]
A.
Evidence. In any action under this subsection, evidence
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. If evidence of the general reputation of
the building, structure or place, or of the inhabitants or occupants
thereof, is sufficient to establish the existence of the nuisance,
it shall be prima facie evidence of knowledge thereof and acquiescence
and participation therein and responsibility for the nuisance, 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.
C.
Presumptions for the purposes of this section.
(1)
Any building, building accessory, business office, lot, or yard, wherein, within the period of one year prior to the commencement of an action under this chapter, there have occurred two or more convictions, as defined in § 213-3 of the chapter, on the part of the lessees, owners, operators, or occupants shall be prima facie evidence that a public nuisance exists at said location.
(2)
Any building, building accessory, business office, lot, or yard, wherein, within a one=year period prior to the commencement of an action under this chapter, there have occurred four or more violations as defined in § 213-3 of this chapter, on the part of the lessees, owners, operators, or occupants, shall be prima facie evidence that a public nuisance exists at said location.
(3)
Any building, building accessory, business office,
lot, or yard, wherein, within the period of one year prior to the
commencement of an action under this chapter, there has been presented
a preponderance of evidence of repeated criminal activity which has
an adverse impact, as defined in § 213- 3 of this chapter,
on such property or neighborhood shall be prima facie evidence that
a public nuisance exists at said location.
[Amended 11-3-2005 by Ord. No. 15-2005]
A.
There is hereby established, for the purpose of administratively
implementing and enforcing the provisions of this chapter, a Nuisance
Abatement Committee (hereinafter referred to as "Committee") which
shall consist of the following members: the Chief of Police, Fire
Chief and City Manager.
B.
In addition to enforcement procedures established
elsewhere, the Committee, after notice and opportunity for a hearing,
shall be authorized:
(1)
To order the discontinuance of such activity at the
building, structure, lot, site and/or separately identifiable portion
thereof where such public nuisance exists; and/or
(2)
To order the closing of the building, structure, lot
and/or separately identifiable portion thereof necessary to abate
the nuisance; and/or
(3)
To suspend for a period not to exceed six months or
revoke for a period of 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
(4)
To suspend for a period not to exceed six months or
revoke for a period of 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
(5)
To suspend for a period not to exceed six months or
revoke for a period of one year eligibility to secure grants or loans
from the City of Auburn; and/or
(6)
Any combination of the above.
A.
Prior to the issuance of orders by the Committee,
the Committee shall give notice and opportunity for a hearing to the
owner, lessor, lessee and the mortgagee of a building, structure,
lot, site and/or separately identifiable portion thereof 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, upon a lessor or lessee pursuant to
§ 735 of the Real Property Actions and Proceedings Law,
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 delivering, mailing or posting without the necessity of filing
proof of service with the clerk of any court before the hearing. The
person in whose name the real estate affected by the order of the
Committee is recorded in the office of the County Clerk shall be presumed
to be the owner thereof.
B.
The lack of knowledge, 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 any interest in
the property, real or personal, used in conducting or maintaining
the public nuisance shall not be a defense by such owners, lessors,
lessees, mortgagees and other persons.
A.
Orders of the Committee issued pursuant to this section
shall be posted at the building, structure, lot, site and/or separately
identifiable portion thereof where a public nuisance exists or is
occurring in violation of law and shall be mailed to the owner of
record thereof within one business day of the posting.
B.
Five business days after the posting of an order issued
pursuant to this section, upon the written direction of the Committee,
the Police Department of the City of Auburn is hereby authorized to
act upon and enforce such order. Where the Committee closes a building,
structure, lot, site and/or separately identifiable portion thereof
pursuant to this section, such closing shall be for such period as
the Committee 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 section. If the owner, lessor, lessee or mortgagee shall file
a bond in an amount determined by the Committee, but which may not
exceed the value of the property ordered to be closed, and submits
proof satisfactory to the Committee that the nuisance has been abated
and will not be created, maintained or permitted for such period of
time as the building, structure, lot, site and/or separately identifiable
portion thereof has been directed to be closed by the order of the
Committee, then the Committee may vacate the provisions of the order
that directed the closing thereof.
C.
A closing directed by the Committee pursuant to this
section shall not constitute an act of possession, ownership or control
by the City of the closed premises.
D.
The Committee may promulgate rules and regulations
to carry out and give full effect to the provisions of this section.
[Added 11-3-2005 by Ord. No. 15-2005]
E.
If any provision of this section or the application
thereof to any person or circumstances is held invalid, the remainder
of this section and the applications of such provisions to other persons
and circumstances shall not be rendered invalid thereby.
[Added 11-3-2005 by Ord. No. 15-2005]
[Added 11-3-2005 by Ord. No. 15-2005]
B.
Procedure.
(1)
The summons. The Corporation Counsel 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 an interest in the property.
(2)
The complaint.
(a)
The Corporation Counsel shall bring and maintain a civil proceeding in the name of the City of Auburn 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 § 213-3 of this chapter, from further conducting, maintaining, or permitting the public nuisance in the manner provided within. 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.
(b)
The venue of such action shall be in the county
where the public nuisance is being conducted, maintained or permitted.
(c)
The existence of an adequate remedy at law shall
not prevent the granting of temporary or permanent relief pursuant
to this chapter.
(d)
The civil action shall be commenced by the filing
of a summons and complaint alleging the facts constituting the nuisance.
(e)
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 possess some part of or an interest
in the 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.
(3)
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.
(4)
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.
(5)
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.
(6)
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 Auburn
Assessor and/or the office of the Clerk of the County of Cayuga.
(7)
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.
(8)
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.
(9)
Enforcement. A judgment pursuant to this chapter shall
be enforced by the City of Auburn Police Department and the Office
of Corporation Counsel.
C.
Judgment awarding permanent injunction.
(1)
A judgment awarding a permanent injunction, pursuant
to this chapter, may direct the Auburn Police Department 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 Auburn 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.
(2)
A judgment awarding a permanent injunction pursuant
to this chapter may authorize agents of the City to forthwith remove
and correct construction and structural alterations in violation of
the City housing code. Any and all costs associated with these repairs
or alterations shall become a lien against said property and shall
have priority before any mortgage or other lien that exists prior
to such filing except tax and assessment liens and any nuisance abatement
lien.
(3)
A judgment awarding a permanent injunction, pursuant to this chapter, may direct the closing of the building, structure or place by the Auburn Police Department, to the extent necessary to abate the nuisance, and shall direct the Auburn Police Department to post a copy of the judgment and a printed notice of such closing conforming to the requirements of § 213-8J of this chapter.
(4)
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 subsection.
(5)
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 directed the closing of the building,
structure or place.
(6)
A closing by the Auburn Police Department pursuant
to this subsection shall not constitute an act of possession, ownership
or control by the Auburn Police Department of the closed premises.
(7)
Upon the request of the Corporation Counsel or the
City Manager, the City of Auburn Police Department shall assist in
the enforcement of a judgment awarding a permanent injunction entered
in an action brought pursuant to this chapter.
(8)
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
before any mortgage or other lien that exists prior to such filing
except tax and assessment liens.
(9)
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.
D.
Preliminary injunction.
(1)
Generally.
(a)
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 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.
(b)
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.
(c)
A preliminary injunction shall be enforced by
the Corporation Counsel and the City of Auburn Police Department,
If the court grants a preliminary injunction, the provisions of this
article shall be applicable.
E.
Temporary closing order.
(1)
If, on a motion for a preliminary injunction pursuant
to this section, 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 place 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.
(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.
F.
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.
G.
Temporary closing order; enforcement of temporary
restraining order.
(1)
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.
(2)
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
Auburn 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 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.
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 place to vacate the premises
forthwith. Upon the building, structure or place 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 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 Cayuga 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.
[Added 11-3-2005 by Ord. No. 15-2005]
A.
Temporary restraining order to be vacated; inspection
provision.
(1)
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 place, 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 City Manager, assist in the enforcement of an inspection provision
of an order vacating a temporary restraining order.
(2)
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 place 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.
B.
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.
[Added 11-3-2005 by Ord. No. 15-2005[1]
A.
Appointment, duration and removal. In any action wherein
the complaint alleges that the 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 faithfully 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.
A.
Upon the arrest and/or conviction of an individual
for any of the above-enumerated offenses, the Police Department of
the City of Auburn shall notify the legal owner of record of the arrest
and/or conviction by regular mail to the address on file with the
Assessor of the City of Auburn.
B.
In the event that the owner of any building, structure,
lot, site and/or separately identifiable portion thereof commences
a summary proceeding pursuant to Real Property Actions and Proceedings
Law § 711, Subdivision 5, to remove a tenant arrested and/or
convicted of any of the above-enumerated offenses, the City of Auburn
shall, if requested by the owner of record in writing, provide to
the court having jurisdiction any and all releasable information in
its possession which may support the owner's summary proceeding to
evict the offending tenant.
C.
In the event that the owner of any building, structure, lot, site and/or separately identifiable portion thereof, upon notice from the City of Auburn of an arrest and/or conviction, commences and concludes a summary proceeding to remove the tenant so arrested and/or convicted, whether the proceeding is successful or not, the arrest and/or conviction shall not be deemed a conviction pursuant to § 213-3.
[Amended 11-3-2005 by Ord. No. 15-2005]
A.
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, lot, site and/or separately identifiable portion thereof
ordered closed by the Committee, Corporation Counsel or a court of
competent jurisdiction. Mutilation or removal of a posted order of
the Committee, 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 Auburn Police Department
shall, upon the request of the Office of Corporation Counsel, or upon
the direction of the City Manager, assist in the enforcement of this
subsection.
B.
Any intentional disobedience or resistance to any
provision of the orders and/or injunctions issued by the Committee,
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.
C.
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, lot, site or separately identifiable portion
thereof in response to notification from the City of Auburn 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.
D.
Violations of this chapter may also be referred to
the Code Enforcement Office or any other appropriate municipal department
and be prosecuted pursuant to the Code of the City of Auburn.
A.
The Committee may promulgate rules and regulations
to carry out and give full effect to the provisions of this chapter.
B.
The Committee shall prepare a quarterly report to
be submitted to City Council summarizing the actions taken under this
chapter and indicating the results of such actions.
C.
If any provision of this section or the application
thereof to any person or circumstances is held invalid, the remainder
of this section and the applications of such provisions to other persons
and circumstances shall not be rendered invalid thereby.
[Added 5-27-2004 by Ord. No. 7-2004]
[Added 11-3-2005 by Ord. No. 15-2005]
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 Auburn.
