[Ord. No. O-09-09; amended
by Ord. No. O-12-09, 8-27-2012, §§ 1 through 3; Ord. No.
O-13-13, 8-26-2013, §§ 1
through 6; Ord. No. O-14-16, 9-15-2014]
(a)
The City has experienced significant problems with extended-hours
retail sales and service establishment security and illegal activity
within and surrounding extended-hours retail sales and service establishments
in the City for several years, including but not limited to problems
with loitering, the illegal sale of narcotics, harassment, weapon
offenses, alcohol and beverage control violations, public health law
violations, assaults, homicides, and other criminal activity. Such
activity poses a substantial risk to the public and employees of extended-hours
retail sales and service establishments and creates a nuisance to
neighborhoods, residents and visitors of the City.
(b)
This article is intended to aid in preventing crimes and nuisance,
to protect employees of extended-hours retail sales and service establishments
and the consumer public at extended-hours retail sales and service
establishments between the hours of 11:00 p.m. and 5:00 a.m. and to
establish security standards for these extended-hours retail sales
and service establishments that are uniform throughout the City.
(c)
The City now declares, in order to permit the development and implementation
of reasonable controls that will effectively protect the public, extended-hours
retail sales and service establishment operators and their patrons,
that this article be enacted.
The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this article, except where
the context clearly indicates a different meaning:
The main structure and the property belonging to or associated
with the business premises.
Includes any business and business premises where acts are
performed or activities are conducted or condoned, whether inside
or outside the business premises, which are contrary to the rules
of good order and behavior, violative of the public peace, indecent,
or which tend to corrupt the morals of the community and promote criminal
activity.
The person, corporation, partnership, joint venture or other
entity or group enterprise licensed to do business at an extended-hours
retail sales and service establishment at a particular location or
locations, in lawful possession of said location by virtue of a deed,
license, lease, sublease or other contract or agreement.
An establishment or business that provides for the sale, provision
of service, service, or on-premises incidental production or assembly
of general merchandise to the general public for direct use or consumption.
This shall include, but not be limited to, carry-out restaurants and
the like with six or fewer seats; any building, structure or grounds
primarily used for the retail sale of groceries, foods, frozen desserts
or beverages to the consumer in a ready-to-consume state, usually
served in paper, plastic or other disposable containers, for consumption
either within the premises, elsewhere on the premises or for carry-out
for consumption off the premises, consumables or commodities, or both
groceries, consumables, commodities and gasoline, open for business
throughout the day, but particularly between the hours of 11:00 p.m.
and 5:00 a.m., or any part thereof.
The term "retail sales and service establishment" does not include:
(a)
No extended-hours retail sales and service establishment shall be
open between the hours of 11:00 p.m. and 5:00 a.m. or any portion
of that time without first having obtained a permit as provided in
this article. Such permit shall not supersede any site plan approval,
or other conditions, regarding the time the establishment is required
to close.
(b)
The fee for this application and permit will be $1,500, which shall
include one inspection and one reinspection. Each reinspection thereafter
shall require an additional fee of $50 per reinspection. If the establishment
does not pass inspection by the third attempt, the business must begin
the process over and reapply for an after-hours permit.
(c)
For those retail sales and service establishments applying for a
renewal of an existing after-hours permit, the business must file
its permit application at least 30 days prior to the expiration of
its active after-hours permit. The calendar year for after-hours permits
shall be from June 1 to May 31.
(a)
Every extended-hours retail sales and service establishment shall
be equipped with the following security devices and standards:
(1)
A fully operative security camera system which meets the minimum
requirements as determined by the Chief of Police or his designee.
Any security camera system and any video and/or audio tape, DVD, CD,
still-frame depiction, download, or any other means by which video
and/or and audio is captured and/or memorialized by a security camera
system shall be made immediately available upon request to any member
of the City of Poughkeepsie Police Department in the furtherance of
any investigation.
(2)
A drop safe or cash management device for restricted access
to cash receipts. Said drop safe or cash management device shall be
permanently affixed to the floor or wall of the interior of the building
or otherwise adequately secured to prevent theft.
(3)
Any parking lot shall be lit to an intensity which makes all
vehicles or persons within the parking lot clearly visible from the
public streets and sidewalks from dusk until dawn.
(4)
A conspicuous notice at the entrance which states that the cash
register contains $50 or less.
(5)
Windows shall not be obstructed or covered more than 25%.
(6)
Height markers at the entrance of the retail sales and service
establishment which display height measures.
(7)
A cash management policy to limit the cash on hand at all times
to less than $150.
(8)
A retail sales and service establishment shall have a minimum
of 50 square feet of unobstructed window space and shall not have
window tinting, signs or other obstructions that reduce exterior or
interior view in the normal line of sight.
(9)
Every retail sales and service establishment shall be equipped
with a silent alarm to a central station alarm monitoring company.
(10)
Every owner or operator of a retail sales and service establishment
shall keep the sidewalk directly in front of his, her or its establishment
clear for pedestrian travel and must comply with all other requirements
relating to sidewalks and noise found in the City of Poughkeepsie
Code of Ordinances.
(11)
Every retail sales and service establishment operating with
a valid permit shall be subject to four random inspections to be performed
by the Chief of Police, or his designee, to ensure compliance with
the requirements of this article.
(a)
Complaint of violation. Any individual or any civic
organization affected by the action or inaction of an extended-hours
retail sales and service establishment subject to the provisions of
this article may contact the City of Poughkeepsie Police Department
to initiate a complaint.
(a)
No owner or operator of any extended-hours retail sales and service
establishment shall operate his, her or its business between the hours
of 11:00 p.m. and 5:00 a.m., or any portion thereof, without a valid
permit or allow, create, or maintain an environment that attracts
or encourages criminal activity.
(b)
If an extended-hours retail sales and service establishment owner
or operator operates his, her or its business without a valid permit
between the hours of 11:00 p.m. and 5:00 a.m., or any portion thereof,
the City of Poughkeepsie Police Department, Building Inspector, Deputy
Building Inspector, or Property Development Specialist has the authority
to close the business between the hours of 11:00 p.m. and 5:00 a.m.
and issue citations for each violation of operating without a valid
permit.
(c)
Upon the occurrence of any events involving serious criminal activity, whether occurring inside or outside the business premises, including but not limited to violent felony offenses, the sale or possession with intent to sell narcotics or marijuana, offenses listed in Article 125 of the Penal Law of the State of New York, or offenses listed in Article 265 of the Penal Law of the State of New York, the Chief of Police or his designee may reasonably conclude that the business constitutes a disorderly establishment and immediately suspend the extended-hours permit pending the outcome of a hearing pursuant to Subsection (d) of this section. Notification of said suspension shall be in written form and served upon the permittee, or any employee or agent of the permittee, either personally or via regular mail at the permittee's last known address. Any request for a hearing must be made in writing to the Chief of Police, or his designee, and such request must be made within 15 days of the date of the suspension. The hearing shall be conducted within 15 days of the receipt of a timely hearing request. A hearing conducted under this subsection where the City sustains its burden and provides adequate factual evidence supporting the suspension shall result in a suspension of the permit for up to one year.
(1)
Upon the occurrence of any events involving violations of the
Alcohol and Beverage Control Law, the Tax Laws, the Public Health
Law, the Code of Ordinances of the City of Poughkeepsie, or activities
that are conducted or condoned, whether inside or outside the business
premises, which are otherwise illegal or promote criminal or nuisance
activity, the Chief of Police or his designee may reasonably conclude
that the business constitutes a disorderly establishment and shall
schedule a hearing, pursuant to Subsection (d) of this section, seeking
a suspension of the permit. Notification of said hearing shall be
in written form and served upon the permittee, or any employee or
agent of the permittee, either personally or via regular mail at the
permittee's last known address. Any request for a hearing must be
made in writing to the Chief of Police, or his designee, and such
request must be made within 15 days of the date of the suspension.
The hearing shall be conducted within 15 days of the receipt of a
timely hearing request. A hearing conducted under this subsection
where the City sustains its burden and provides adequate factual evidence
supporting the suspension shall result in a suspension of the permit
for up to one year.
(2)
A hearing resulting in a second suspension pursuant to Section 14-70(c)(1) within a twelve-month period shall result in an immediate one-year revocation of the permit.
(d)
Any owner, operator or person designated by the owner may appeal
his, her or its suspension, prospective suspension or revocation of
the permit of an extended-hours retail sales and service establishment
in accordance with the following procedure:
(1)
Any owner or operator aggrieved by a suspension or prospective revocation pursuant to Section 14-70(c), or a prospective suspension pursuant to Section 14-70(c)(1), shall be granted a hearing on the matter before a hearing officer duly appointed by the City Administrator. The City Administrator shall set a time and place for such hearing and shall give the permittee written notice thereof. Any request for a hearing must be made in writing to the Chief of Police, or his designee, and such request must be made within 15 days of the date of the suspension. The hearing shall be conducted within 15 days of the receipt of a timely hearing request. At such hearing, the City shall have the burden and shall be required to provide factual evidence supporting the closure, suspension or revocation of the extended-hours permit. The owner, operator or person designated by the owner shall be given the opportunity to confront or contradict any evidence put forth by the City and be heard as to why such notice should be modified or withdrawn. For the purpose of the hearing, the formal rules of evidence shall not apply.
(2)
In the event that an owner, operator or person designated by
the owner fails to appear at a duly scheduled hearing, the hearing
shall be held in abstentia and the permittee's right to take part
and defend a suspension and/or revocation shall be deemed waived.
(3)
After such hearing, the hearing officer shall provide a written
decision and recommendation to the City Administrator. Upon receipt
of the written decision and recommendation, the City Administrator
shall provide a written decision sustaining, modifying or withdrawing
the suspension or revocation, depending upon the finding as to whether
the provisions of this article and the rules and regulations adopted
pursuant thereto have been complied with and whether the suspension
or revocation is justified by the evidence elicited at the hearing.
(4)
The effective date of any suspension or revocation issued after a hearing shall be the date the City Administrator issues his decision pursuant to Section 14-70(d)(3).
(e)
Notwithstanding any closure, revocation or suspension of a permit,
any owner or operator who fails to abide by any of the provisions
of this article, and who is convicted of the same in a court of competent
jurisdiction, shall be punished by a fine of not more than $1,000
for each violation and an additional $100 for each day that the noncompliant
condition exists. Additionally, any conviction for a violation of
this article shall result in a suspension of the extended-hours permit
for up to 30 days for the first offense, 60 days for the second offense
and 90 days for the third offense. Any establishment convicted of
violating any provision of this article four times shall have its
extended-hours permit revoked for a period of one year from the date
of conviction.
(f)
Any owner, operator or business convicted of operating an extended-hours
retail sales and service establishment without a valid permit under
this article shall not be eligible for a permit or a permit renewal
for one year from the date of conviction.
(g)
Upon the occurrence of any suspension or revocation, a member of
the City of Poughkeepsie Police Department shall seize the extended-hours
permit and transfer the same to the City Chamberlain. The City Chamberlain
shall hold the extended-hours permit until the permittee's privilege
to obtain and display the same is granted pursuant to this article.
(a)
All applications shall be reviewed by the Chief of Police or his
designee prior to the issuance of any permit. If the issuance of the
permit is not in the best interest of the general public welfare and
safety, the Chief of Police or his designee shall deny the application
and provide a written basis for the denial. Denials may be based upon
violations of this article, including but not limited to criminal
activity, violations of the Public Health Law, violations of the Alcohol
and Beverage Control Law, nuisance activity in and around the retail
sales and service establishment, and prior revocations and/or suspensions
pursuant to this article.
(b)
Any application shall be denied if the establishment, or the property
thereon, is not in compliance with the zoning and building codes of
the City as determined by the Building Inspector and/or Zoning Administrator.
(c)
Any applicant aggrieved by a denial pursuant to this section shall be granted a hearing on the matter in accordance with the hearing procedure as outlined in Section 14-70. At such hearing, the City shall have the burden and shall be required to provide factual evidence supporting the application denial. The petitioner shall be given the opportunity to confront or contradict any evidence put forth by the City and be heard as to why such application should not be denied. For the purpose of the hearing, the formal rules of evidence shall not apply.
(d)
After such hearing, the hearing officer shall provide a written decision
and recommendation to the City Administrator. Upon receipt of the
written decision and recommendation, the City Administrator shall
sustain or overturn the decision to deny the application, depending
upon a finding as to whether the provisions of this article and the
rules and regulations adopted pursuant thereto have been complied
with and whether the denial is justified by the evidence elicited
at the hearing.
