[HISTORY: Adopted by the Board of Trustees of the Village of Phoenix 10-15-2002
by L.L. No. 3-2002. Amendments noted where applicable.]
GENERAL REFERENCES
Adult entertainment businesses — See Ch. 65.
Alcoholic beverages — See Ch. 69.
Animals — See Ch. 72.
Bingo — See Ch. 78.
Outdoor burning — See Ch. 82.
Firearms — See Ch. 95.
Games of chance — See Ch. 107.
Parks and public property — See Ch. 133.
Peace and good order — See Ch. 137.
A.
The Board of Trustees of the Village of Phoenix does
hereby find and determine that public nuisances exist in the Village of Phoenix
in the operation of certain establishments and the use of property in flagrant
violation of the Penal Law of the State of New York and related statutes,
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 Village, property values and the public health, safety and welfare of
its citizens.
B.
The Village further finds that many landlords do not
adequately screen their tenants and some in fact feel that a bad tenant is
better than no tenant.
C.
The Village 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.
D.
The Village further finds that the continued occurrence
of such activities, violations and attitudes is detrimental to the health,
safety and welfare of the Village, its citizens, the business thereof and
visitors thereto. It is the purpose of this chapter 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 Village further finds that
the sanction and penalties imposed by the Chief pursuant to 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, safety and welfare
of the people in the Village and to promote the general welfare thereof.
For the purposes of this section, a public nuisance is declared to exist
where:
A.
Controlled substances offenses.
(1)
An arrest for a violation of any provision of Article
220 or 221 of the New York State Penal Law has been made within 60 days prior
to the issuance of notice pursuant to this section, where said arrest has
been predicated on events, circumstances or activities occurring on the premises;
and
(2)
Either one of the following:
(a)
A violation of Article 220 or 221 which has resulted in a criminal conviction to Article 220 or 221 within the twenty-four-month period of time prior to the arrest required in § 125-2A(1) above, where said conviction has been predicated on events, circumstances or activities occurring on the premises; or
(b)
Discovery by any law enforcement agency or duly authorized agent thereof of a quantity and quality of drug or substance on the premises, the amount of which would subject an individual, if prosecuted, to a conviction of Article 220 or 221 of the Penal Law, which discovery has not led to an arrest or conviction, within the twenty-four-month period of time prior to the arrest required § 125-2A(1) above; or
B.
There exists a series of violations of a designated nuisance offense as those terms are defined in § 125-3 of this chapter, which has resulted in a conviction of three or more designated nuisance offenses within the twenty-four-month period of time, where said convictions have been predicated on events, circumstances or activities occurring or which are a proximate result of such activities occurring on the premises.
As used in this chapter, the following terms shall have the meanings
indicated:
The Chief of Police of the Village of Phoenix or his/her designee.
As defined and applied in accordance with the provisions of Section
1.20 of the Criminal Procedure Law of the State of New York.
Any violations of Article 120 (Assault and Related Offenses), Article 125 (Homicide, Abortion and Related Offenses), Article 130 (Sex Offenses), Article 140 (Burglary and Related Offenses), Article 150 (Arson), Article 155 (Larceny), Article 160 (Robbery), Article 165 (Other Offenses Relating to Theft), Article 170 (Forgery and Related Offenses), Article 225 (Gambling Offenses), Article 230 (Prostitution Offenses), Article 235 (Obscenity and Related Offenses), Article 240 (Offenses Against Public Order), Article 245 (Offenses Against Public Sensibilities), Article 260 (Offenses Relating to Children, Disabled Persons and Vulnerable Elderly Persons), Article 263 (Sexual Performance by a Child), Article 265 (Firearms and Other Dangerous Weapons) and Article 270 (Other Offenses Relating to Public Safety) of the Penal Law of the State of New York; and any violations of Chapter 65 (Adult Entertainment Businesses), Chapter 69 (Alcoholic Beverages), Chapter 72 (Animals), Chapter 78 (Bingo), Chapter 82 (Burning, Outdoor), Chapter 95 (Firearms), Chapter 107 (Games of Chance), Chapter 133 (Parks and Public Property), and Chapter 137 (Peace and Good Order) of the Code of the Village of Phoenix; and any violations of the Alcoholic Beverage Control Law; and any violation of Article 220 or 221 (Controlled Substance Offenses and Offenses Involving Marihuana, respectively) of the Penal Law as set forth in § 125-2 of this chapter.
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 whereon the public nuisance
is being conducted or exists.
The Village of Phoenix, including the Board of Trustees.
The Village Prosecuting Attorney of the Village of Phoenix.
In addition to the enforcement procedures established elsewhere, the
Chief, after notice and opportunity for a hearing in front of a judge of the
Town of Schroeppel Justice Court, shall be authorized to seek from the Town
of Schroeppel judge:
A.
The Chief shall give notice and opportunity for a hearing
to the owner, lessor, lessee, agent and all the persons in possession or having
charge 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 of the State of New York, upon a lessor
or lessee pursuant to § 735 of the Real Property Actions and Proceedings
Law of the State of New York 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 of proof of service with the clerk of any court before the hearing.
B.
Such notice shall:
(1)
Specify the activities creating the nuisance.
(2)
Provide seven days for elimination of the nuisance; and,
moving the nuisance to another premises owned by the owner shall not constitute
elimination.
(3)
Inform the person to whom it is directed of his/her right
to apply within seven days for a hearing before a Town of Schroeppel judge.
(4)
Inform the owner/landlord that, upon the expiration of
seven 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 compliance as provided by this chapter.
(5)
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
seven days after service of the notice, the Town Court may direct the Chief
to act to obtain compliance as provided, including, but not limited to, the
closing of the premises.
A.
The burden of proof shall be upon the Village to prove the existence of a nuisance as defined in § 125-2 by a preponderance of the evidence.
B.
The owner/landlord has no obligation to offer any evidence
at the hearing but may do so.
C.
The hearing shall be conducted under the standard rules
of evidence of the State of New York.
D.
Upon conclusion of the fact-finding, the judge shall
issue an order:
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.
If the Town Justice Court grants one or both of the orders contemplated in § 125-4 of this chapter, then the Chief shall post said order(s) on the premises wherein the public nuisance has occurred/is occurring 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 in § 125-5A. A copy of said order will also be filed with the Clerk of the Town Justice Court and made available for public inspection.
A.
Five business days after the issuance of an order(s) pursuant to § 125-4 and upon the directive of the Court, the Chief and officers of the Village of Phoenix Police Department are authorized to act upon and enforce such order(s).
B.
Where the Town Court closes a premises pursuant to this
chapter, such closing shall be for such a period as the Town Court may direct,
but in no event shall the closing be for a period of 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 Town Court,
but which may not exceed the value of the premises ordered to be closed, and
submit proof satisfactory to the Town 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 Town Court,
then the Town Court may vacate the provisions of the order that directed the
closing of the premises.
C.
Upon receiving a nuisance case from the Chief, the Village
Prosecuting Attorney shall, subject to the approval of the Mayor of the Village,
maintain a special proceeding in State Supreme Court against the owner of
the premises to affix a civil penalty in an amount not to exceed $250 a day
and to collect any costs and expenses, including reasonable attorney's
fees, incurred by the Village of Phoenix in commencing the proceeding and
closing the premises..
A.
The judgment in such proceeding, in favor of the plaintiff,
shall establish the penalty sued for with costs and disbursements as a lien
upon such premises, subject only to taxes, assessments, water rates, mortgages
and mechanics liens as they may exist thereon prior to the filing of the notice
of pendency of the action or proceeding.
B.
The Village Prosecuting Attorney shall have the power,
subject to the approval of and on ex parte application to the State Supreme
Court, to appoint a 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 appointed by the Supreme Court, provided that the Village Prosecuting
Attorney shall act as his/her counsel and the receiver shall not be allowed
any expenditure for counsel fees, and his/her commissions shall be 10% of
his/her collections, which sum shall be full compensation for his/her services
and those of any agent or agents whom he/she may employ. Such receiver shall
continue until the amount of such liens, with interest at the rate of 9%,
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.
C.
At any time after the entry of any judgment establishing
a lien upon the premises, the Village Prosecuting Attorney, on behalf of the
Chief, may apply to the State Supreme Court for leave to sell the premises.
Upon such application, the Supreme Court may order the premises sold at public
auction, subject to taxes, assessments, water rates, mortgages and mechanics
liens.
A closing directed by the Town Court and/or Supreme Court pursuant to
this chapter shall not constitute an act of possession, ownership or control
by the Village 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 any premises, or portion thereof,
ordered closed by the Court.
B.
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
contained therein a notice of such penalty.
C.
Intentional disobedience or resistance to any provision
of the orders issued by the Town Court and/or Supreme Court pursuant to this
chapter, in addition to any other punishment prescribed by law, shall be a
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 carry out and give
full effect to the provisions of this chapter.
No officer, agent or employee, including the Village Prosecuting Attorney
of the Village of Phoenix, 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 clause, sentence, paragraph, section or 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 but shall
remain in full force and effect as if the invalid part hereof has been removed.
