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Public Nuisance Law

SECTION I

The Code of the City of Watervliet is hereby amended to add a new Article to existing Chapter 202 “Nuisances” known as Article II “Abatement of Public Nuisances”. The specific purpose of this Ordinance is to amend Ordinance No. 1730 as amended in its entirely by Ordinance No. 1732 by specifically deleting Chapter 201 “Miscellaneous Offenses and Provisions” and revising Chapter 202 (Nuisances) by adding Article II “Abatement of Public Nuisances.”

 

CHAPTER 202 - NUISANCES

ARTICLE II “ABATEMENT OF PUBLIC NUISANCES”



Section 202-2.1: Legislative Findings

The Council finds that public nuisances exist in the City of Watervliet in the operation of certain establishments and the use and occupation of property in flagrant and persistent violation of State and Local Law and Ordinances, which nuisances substantially and seriously interfere with the interest of the public in enhancing the quality of life and community environment in the City, and in fostering and facilitating commerce, maintaining and improving property values, and preserving and protecting the public health, safety and welfare.

The Council further finds that the persistence of such activities and violations is detrimental to the health, safety and welfare of the people of the City of Watervliet and of the businesses thereof and the visitors thereto. It is the purpose of the Council to authorize and empower the General Manager to impose sanctions and penalties for such public nuisances, and such powers of the General Manager 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 that may be imposed by the General Manager pursuant to this law 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.

Section 202-3 Public Nuisance Defined

For the purposes of this section, a public nuisance shall be deemed to exist whenever, through violation of any of the following provisions resulting from separate incidents at a building, erection or place, twelve (12) or more points are accumulated within a period of six (6) months or eighteen (18) or more points are accumulated 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. For the purpose of this Ordinance, an incident will be defined as the execution of an enforcement action in response to a violation of the law.

Section 202-4: Assessment of Points

(A.) The following violation shall be assigned a point value of eight (8) points.

1. Section 265 of the Penal Law - Firearms and other dangerous weapons.

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

1. Article 220 of the Penal Law - Controlled Substance Offenses

2. Article 221 of the Penal Law - Offenses involving Marijuana

3. Article 225 of the Penal Law - Gambling Offenses

4. Section 230.00 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. Alcoholic Beverage Control Law - all enforcement provisions of said law

7. Sections 260.20 and 260.21 of the Penal Law - Unlawfully dealing with a child

8. Section 263.00 of the Penal Law - Sexual performance by a child

9. Section 240 of the Penal Law - all enforcement sections - Disorderly Conduct

10. 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 productions in violation of Article 20 f the Tax Law

11. Article 158 of the Penal Law - Welfare Fraud

12. Article 178 of the Penal Law - Criminal Diversion of Prescription Medications and Prescriptions

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

1. Chapter 175 & 127 of the City Code -All sections of the International Code with NYS amendments & City Housing Standards

2. Section 272 violations - Zoning Laws City of Watervliet City Code

(D.) The following violations shall be assigned a point value of three (3) points:

1. Chapter 168 & 123 of the Watervliet City Code - Garbage, Littering and Grass, weeds and brush overgrowth.

2. Chapter 197 of the Watervliet City Code - Noise

3. Chapter 108 City Code & Art. 126 of NYS Ag & Mkts Law - Animals

4. Suffering or permitting the premises to become disorderly, including suffering or permitting fighting or lewdness

5. Section 175.10 of the Penal Law - Falsifying Business Records

6. Sections 170.65 and 170.70 of the Penal law - Forgery of or illegal possession of a Vehicle Identification Number

7. Section 147 of the Social Services Law - Food Stamp Program Fraud

8. Sec 134 City Code - Outdoor Burning

Section 202-5: Conviction not required

For the purposes of this section, a conviction for an offense in a court of competent jurisdiction shall not be required to establish that a specified violation of law has occurred at building, erection or place. Instead, the City shall be required to prove a specified violation by a preponderance of the evidence. 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 a conclusive proof of such a violation of law. Conviction of an attempt to commit a violation of any of the specified provisions shall be equivalent to a conviction for a violation of the specified provision.

Section 202-6: Opportunity for Hearing (Watervliet City Court)

An opportunity for a hearing in the Civil Part of the City Court of Watervliet shall be within ninety (90) days after the occurrence of the most recent violation cited in the notice. The City will develop a process for the conduct of the hearing pursuant to Section 201 and the General Manager will set an administrative hearing fee to deter the costs to the taxpayers.

Section 202-7: Notice

(A.) Prior to the issuance of orders by the City Court pursuant to this section, the City Court 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.

(B.) 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 Section 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 delivery, mailing or posting without the necessity of filing proof of service with the clerk of any court before the hearing. Proceedings shall be commenced by service of the notice.

Section 202-8: Powers of the City Court with respect to public nuisances

In addition to any other enforcement procedures established elsewhere, the City Court, after notice and opportunity for a hearing with respect to a public nuisance shall be authorized:

(A.) To order the closing of, the building, erection, or place to the extent necessary to abate the nuisance; or

(B.) To suspend for a period not to exceed six (6) months or revoke for a period of one (1) 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

(C.) To impose a fine of not less than $250.00 nor more than $1,000.00.

(D.) Any combination of the above.

Section 202-9: Presumption of Ownership

The owner of the property affected by the orders of the General Manager or the City Court shall be presumed to be the person in whose name title real estate is recorded in the Office of the Albany County Clerk.

Section 202-10: Lack of Knowledge Not a Defense

The lack of knowledge of acquiescence or participation in or responsibility for a public nuisance on the part of the owners, lessors, lessees, mortgages and all those persons in possession or having charged of the property 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, lessor, lessees, mortgages, and such other persons.

Section 202-11: Orders of the General Manager or the City Court

(A.) Orders of the General Manager or the City Court 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 therefore within one (1) business day of the posting.

(B.) Five (5) business days after the posting of an order issued pursuant to this section and upon the written directive of the General Manager or the City Court, officers of the City of Watervliet Police are authorized to act upon and enforce such orders.

(C.) Where the General Manager of the City Court closes a building, erection, or place pursuant to this section, such closing shall be for such period as the General Manager or the City Court may direct, but in no event shall the closing be for a period of more than one (1) 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 General Manager or the City Court but not exceeding the value of the property ordered to be closed, and submit proof satisfactory to the General Manager or the City Court that the nuisance has been abated and will not again 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 General Manager or the City Court, then the General Manager or the City Court may vacate the provisions of the order that direct the closing of the building, erection, or place.

(D.) To impose a fine of not less than $250.00 nor more than $1,000.00.

(E.) A closing directed by the General Manager or the City Court pursuant to this section shall not constitute an act of possession, ownership, or control by the City of the closed premises.

Section 202-12: Violations

(A.) It shall be a misdemeanor for any person to use or occupy any building, erection, or place, or portion thereof, ordered closed by the General Manger or the City Court pursuant to this chapter.

(B.) Mutilation or removal of a posted order of the General Manager or the City Court shall be punishable by a fine of not less 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 or disregard of any provision of orders issued by the General Manager or the City Court pursuant to this section, in addition to any other punishment prescribed by law, shall be punishable by a fine of not less than $250 or not more than one thousand dollars ($1,000.00) or by imprisonment not to exceed six (6) months, or both.

Section 202-13: Rules and Regulations

The General Manger or the City Court shall promulgate rules and regulations to carry out and give full effect to the provisions of this section, including but not limited to the design and implementation of the hearing process, PNL forms, various PNL administrative fee requirements and rules governing the reporting of Public Nuisance Law to the City Council.

Section 202-14: Validity

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.

Section 202-15: Non-payment of Fines for Violations

Any fines or monetary penalties assessed herein which are not paid within ten calendar days of said assessment shall be added to the violator’s annual City tax statement with applicable interest, fees and penalties in a manner designated by the Rules & Regulations promulgated by the General Manager.

Section 202-16: Administrative Liability

Neither the City of Watervliet, 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 II

That all Ordinances or parts of Ordinances in conflict with this Ordinance are hereby repealed.

SECTION III

This Ordinance shall take effect immediately.

Approved as to form this 16th day of February, 2006.