A.
Declaration of legislative findings.
(1)
The Council finds that public nuisances exist in the
City of Schenectady in the operation of certain establishments and
the use of property in flagrant violation of certain Penal Law and
Municipal Code provisions, which nuisances 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.
(2)
The 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 Schenectady and of the businesses
thereof and the visitors thereto. It is the purpose of the Council
to authorize and empower the Mayor to impose sanctions and penalties
for such public nuisances, and such powers of the Mayor 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.
(3)
The Council further finds that the sanctions and penalties
imposed by the Mayor 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 and safety
of the people of the City and to promote the general welfare.
B.
Public nuisances defined. For purposes of this section,
a public nuisance shall be deemed to exist whenever through violations
of any of the following provisions resulting from separate incidents
at a building, erection or place, 12 or more points are accumulated
within a period of 12 months, or 18 or more points within a period
of 24 months, 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.
[Amended 6-24-2002 by Ord. No. 2002-6]
(1)
The following violations shall be assigned a point
value of six points:
(a)
Article 220 of the Penal Law (controlled substances
offenses).
(b)
Article 221 of the Penal Law (offenses involving
marijuana).
(c)
Article 225 of the Penal Law (gambling offenses).
(d)
Article 230 of the Penal Law (prostitution offenses).
(e)
Sections 165.40, 165.45, 165.50, 165.52 and
165.54 of the Penal Law (criminal possession of stolen property).
(f)
The Alcoholic Beverage Control Law.
(g)
Article 265 of the Penal Law (firearms and other
dangerous weapons).
(h)
Sections 260.20 and 260.21 of the Penal Law
(unlawfully dealing with a child).
(i)
Article 263 of the Penal Law (sexual performance
by a child).
(j)
Section 415-a of the Vehicle and Traffic Law
(vehicle dismantlers).
(k)
Section 175.10 of the Penal Law (falsifying
business records).
(l)
Sections 170.65 and 170.70 of the Penal Law
(forgery of and illegal possession of a vehicle identification number).
(m)
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.
(n)
Article 158 of the Penal Law, (welfare fraud).
(o)
Article 178 of the Penal Law (criminal diversion
of prescription medications and prescriptions).
(p)
Section 147 of the Social Services Law (food
stamp program fraud).
(q)
Any other felony under New York State law.
(2)
The following violations shall be assigned a point
value of four points:
(3)
(4)
For purposes of this section, 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 written acknowledgment of violation in a civil compromise proceeding
in the Bureau of Consumer Protection, 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.
C.
Abatement. For the purposes of this chapter, "abatement"
shall mean a concerted effort by a person with an interest in a licensed
business to severely diminish or eliminate the activity or activities
constituting the nuisance found to exist at or within the premises.
Abatement may include, by way of example and not exclusion: hiring
of security personnel, lighting changes, video or audio monitoring
equipment, signage, cooperation with police and other enforcement
agencies, bureaus, departments and authorities, eviction or court
action.
A.
In in the event that a licensee does not abate the
nuisance, the Mayor may by written order decide to hold a hearing
at which he or his designee shall preside. The hearing shall be open
to the public, and shall be upon at least five days' notice. At any
such hearing or continuation thereof, the licensee shall be entitled
to be represented by counsel, and all persons shall have the right
to present evidence, witnesses or proof, not limited to that evidence,
witnesses or proof entitled to be introduced into courts.
B.
In addition to the enforcement procedures established
elsewhere, the Mayor or the Mayor's designee, after notice and opportunity
for a hearing with respect to a public nuisance, shall be authorized:
(1)
To order the closing of the building, erection or
place to the extent necessary to abate the nuisance;
(2)
To suspend for a period not to exceed six months or
revoke for a period of one year a certificate of use issued for such
premises, and to prevent the operator from obtaining a new certificate
of use for another location for the period of suspension or revocation;
(3)
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; or
(4)
Any combination of the above.
C.
Service of notice.
(1)
Prior to the issuance of orders by the Mayor or the
Mayor's designee pursuant to this section, the Mayor or the Mayor's
designee shall give notice and opportunity for a hearing to the owner,
lessor, lessee and mortgagee of a building, erection or place 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 Properly Actions and Proceedings Law,
and upon a mortgage means of certified mail, return receipt requested,
sent to the mortgagee's last known address, or by service upon the
Clerk of the City if a rental certificate for the building has been
issued, 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 any court or agency before the hearing. The person in whose
name the real estate affected by the orders of the Mayor or the Mayor's
designee as recorded in the office of the County Clerk shall be presumed
to be the owner thereof. Proceedings shall be commenced by service
of the notice and opportunity for a hearing within 60 days after the
occurrence of the most recent violation cited in the notice.
(2)
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 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 and
lessees, mortgagees and such other persons.
D.
Orders of the Mayor or the Mayor's designee issued
pursuant to this section shall be posted at the building, erection
or place 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.
E.
Five business days after the posting of an order issued
pursuant to this section and upon the written directive of the Mayor
or the Mayor's designee, officers of the Schenectady Police Department
are authorized to act upon and enforce such orders.
F.
Where the Mayor or the Mayor's designee closes a building,
erection or place pursuant to this section, such closing shall be
for such period as the Mayor or the Mayor's designee may 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 or lessee shall file a bond in an amount determined by the
Mayor or the Mayor's designee but which may not exceed the value of
the property ordered to be closed and submit proof satisfactory to
the Mayor or the Mayor's designee that the nuisance has been abated
and will not be created, maintained or permitted for such period of
time as the building, erection or place has been directed to be closed
by the order of the Mayor or the Mayor's designee, then the Mayor
or the Mayor's designee may vacate the provisions of the order that
direct the closing of the building, erection or place.
G.
A closing directed by the Mayor or the Mayor's designee
pursuant to this section shall not constitute an act of possession,
ownership or control by the City of the closed premises.
H.
It shall be a misdemeanor for any person to use or
occupy or to permit any other person to use or occupy any building,
erection or place or portion thereof ordered closed by the Mayor or
the Mayor's designee. Mutilation or removal of a posted order of the
Mayor or the Mayor's designee shall be 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.
I.
Intentional disobedience or resistance to any provision
of the orders issued by the Mayor or the Mayor's designee pursuant
to this section, 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.
J.
The Mayor or the Mayor's designee may promulgate rules
and regulations to carry out and give full effect to the provisions
of this section.
K.
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 application of such provisions to other persons
and circumstances shall not be rendered invalid thereby.
L.
The Mayor shall prepare a quarterly report to be submitted
to City Council summarizing the actions taken under this section and
indicating the results of such actions.
