Public Nuisance Abatement

ORDINANCE NUMBER

An introduction by Council Members Conti and Curry-Cobb

AN ORDINANCE AMENDING CHAPTER 255 (PEACE AND GOOD ORDER) OF THE CODE OF THE CITY OF ALBANY BY ADDING THERETO A NEW ARTICLE VIII  ENTITLED: “PUBLIC NUISANCE ABATEMENT”

            The City of Albany, in Common Council convened, does hereby ordain and enact as follows:

            Section 1.  Chapter 255 (Peace and Good Order) of the Code of the City of Albany is amended by adding thereto a new Article VIII entitled “Public Nuisance Abatement” to read as follows:

ARTICLE VIII

Public Nuisance Abatement

            §255-43.  Findings and intent.

            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, 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 constitutes 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.

 

            Section 255-44. Definitions.

            For the purposes of this Article, the following terms shall have the meanings indicated, unless the context clearly requires otherwise:

            A.  “Chief” - The chief of the Albany Police Department or his or her designee.

            B.  “Mortgagee” - 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.

            C.  “Owner” - 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.

  1. “Premises” - The building, place, or property whereon a public nuisance is being conducted or exists.
  2. “Public nuisance” – (1) 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 predicated at events, circumstances or activities occurring on the premises, twelve (12) or more points are accumulated within a period of six (6) months, or eighteen (18) or more points within a period of twelve (12) months, in accordance with the following point system.  Where more than one (1) violation occurs during a single incident, the total points for the incident shall be the highest point value assigned to any single violation.

(a) The following violations shall be assigned a point value of six (6) points:

  1. Article 220 of the Penal Law – Controlled Substances Offenses;
  2. Article 221 of the Penal Law – Offenses involving Marihuana;
  3. Article 225 of the Penal Law – Gambling Offenses;
  4. Article 230 of the Penal Law – Prostitution Offenses;
  5. Sections 165.40, 165.45, 165.50, 165.52 and 165.54 of the Penal Law – Criminal Possession of Stolen Property;
  6. Sections 65 or 82 of the Alcoholic Beverage Control Law;
  7. Article 265 of the Penal Law – Firearms and other Dangerous Weapons;
  8. Sections 260.20 and 260.21 of the Penal Law – Unlawfully Dealing with a Child;
  9. Article 263 of the Penal Law – Sexual Performance by a Child;

(b) The following violations shall be assigned a point value of four (4) points:

  1. Section 415-a of the Vehicle and Traffic Law – Vehicle Dismantlers;
  2. Section 175.10 of the Penal Law – Falsifying Business Records;
  3. Sections 170.65 and 170.70 of the Penal Law – Forgery of and Illegal Possession of a Vehicle Identification Number;
  4. 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;
  5. Article 178 of the Penal Law – Criminal Diversion of Prescription Medications and Prescriptions;
  6. Section 147 of the Social Services Law – Food Stamp Program Fraud;
  7. Operating a business during hours which the business is required to be closed pursuant to Chapter 375 of the Municipal Code, Zoning.

(2) 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.

Section 255-45. Remedies to abate public nuisances.

            In addition to the enforcement procedures established elsewhere in this Article, the chief , after notice and opportunity for a hearing, shall be authorized:

            (1) to order the discontinuance of such activity at the premises where such public nuisance exists; and/or

            (2) to order the closing of the premises to the extent necessary to abate the public nuisance.

            Section 255-46. Service of notice.

            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.

            B.  The notice provided for in subsection A of this section shall:

            (1) Specify the activity creating the public nuisance;

            (2) Provide thirty (30) days for elimination of the public nuisance;

            (3) Inform the person to whom it is directed of their right to apply within ten (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 premise that upon expiration of thirty (30) days after service without a hearing before the chief, or upon non-compliance 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 (5) 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 thirty (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.

            Section 255-47.  Lack of knowledge is not a defense.

            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.

            Section 255-48.� Issuance of order.

            The chief shall issue the order provided for in section 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 (1) business day of the posting of said order on the premises.

            Section 255-49.  Enforcement of order.

            A. No sooner than five (5) business days after the issuance of an order pursuant to sections  255-45 and 255-47 of this Article, and upon the directive of the chief, officers of the Albany police department are authorized to act upon and enforce such order.

            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 (1) year from the issuance of the order.

            C. Upon receiving a copy of the order issued by the chief, pursuant to sections 255-45 and 255-47 of this Article, the corporation counsel shall maintain a special proceeding to affix a civil penalty in the amount of five thousand dollars ($5,000.00), 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.

            D.  The judgement 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.

            Section 255-50.  Judgement and action by corporation counsel.

            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 section 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 ten (10) percentum 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 nine (9) percentum 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 judgement 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.

            Section 255-51.  Closing not possession.

            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.

            Section 255-52.  Disobedience of order.

            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 two hundred fifty dollars ($250.00), or by imprisonment not exceeding fifteen (15) days, or both, provided such order contains therein a notice of such penalty.

            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 five hundred dollars ($500.00), or imprisonment not exceeding six (6) months, or both.

            D.  Each days violation shall constitute a separate offense.

            Section 255-53.  Promulgation of rules and regulations.

            The chief may promulgate such rules and regulations as may be necessary to carry out the provisions of this Article.

            Section 255-54.  Administrative liability.

            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.

            Section 255-55.  Severability

            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.

            Section 2.  This ordinance shall take effect ninety days after its enactment into law.

            Approved as to form this        day of April 1999.

 

 

                                                                        ________________________________________

                                                                                                 Corporation Counsel