Abating Nuisance Abatement: Gay City News Article

By helbraunlevey on May 15, 2012 in Bars, Clients, General Counsel, Legislation, New York, Press

http://www.gaycitynews.com/articles/2012/05/09/gay_city_news/news/doc4f85d3e9c9e29209305315.txt

A great article that is a prime example of misuse of the New York City Administrative Code “Nuisance Abatement” laws (NYC ADC 7-701 et seq, below.). Bravo to the attorneys and the bar owners for taking this action. The Nuisance Abatement laws are often used against gays, minorities and other disparate classes, as well as against popular bars and restaurants on the Lower East Side and Meatpacking District, where the police tend to over enforce laws by writing summonses which are dismissed most of the time as defective.

Essentially, the Nuisance Abatement laws (defined in 7-703) were written in the 1970s to combat brothels and drug dens, by allowing the NYPD to go after the property of the landlord if action is not taken to correct the nuisances. That would be a good thing. However, the laws are so broad that even one allegation by the NYPD that an underage sale occurred is enough to trigger an injunction which can close a bar/restaurant for days. Usually, if an attorney doesn’t know better, the NYPD Legal Unit will bring a civil action and the bar will sign a stipulation that requires all kinds of strict rules (using an ID scanner, a security guard, etc.)– none of which are required by law.

The NYPD uses this law to enact legislation de facto against bars and restaurants, by requiring all kinds of restrictive measures in a stipulation. This is so broad that it requires 3 instances of drug sales or prostitution, but only one violation of any of the rules of the Alcoholic Beverage Control Law (ABC). Clearly, this is not how it should be used, but the NYPD is fond of a late Thursday Order to Show Cause for an injunction that many judges will simply sign off on, per the article. These are served late Friday, closing the business for the weekend — often without valid proof, or for tickets that are already dismissed, yet the burden of proof is much lower for the civil case than in the criminal case.

Of course, a knowledgeable attorney will move to have the injunction lifted immediately under 7-712, which has remedies specifically outlined. If you have a Nuisance Abatement case from the NYPD in New York City, we can help your bar or restaurant with the injunction.

§ 7-703 Public nuisance defined. The following are declared to be
public nuisances:
(a) Any building, erection or place, including one- or two-family
dwellings, used for the purpose of prostitution as defined in section
230.00 of the penal law. Two or more criminal convictions of persons for
acts of prostitution in the building, erection or place, including one-
or two-family dwellings, within the one-year period preceding the
commencement of an action under this chapter, shall be presumptive
evidence that the building, erection or place, including one- or
two-family dwellings, is a public nuisance. In any action under this
subdivision, evidence of the common fame and general reputation of the
building, erection or place, including one- or two-family dwellings, of
the inmates or occupants thereof, or of those resorting thereto, shall
be competent evidence to prove the existence of the public nuisance. If
evidence of the general reputation of the building, erection or place,
including one- or two-family dwellings, or of the inmates or occupants
thereof, is sufficient to establish the existence of the public
nuisance, it shall be prima facie evidence of knowledge thereof and
acquiescence and participation therein and responsibility for the
nuisance, on the part of the owners, lessors, lessees and all those in
possession of or having charge of, as agent or otherwise, or having any
interest in any form in the property, real or personal, used in
conducting or maintaining the public nuisance;
(b) Any building, erection or place, including one- or two-family
dwellings, used for the purpose of obscene performances. The term
“obscene” shall have the same meaning as that term is defined in
subdivision one of section 235.00 of the penal law. The term
“performance” shall have the same meaning as that term is defined in
subdivision three of section 235.00 of the penal law. Two or more
convictions, as defined in subdivision thirteen of section 1.20 of the
criminal procedure law, of persons for production, presentation or
direction of an obscene performance or for participation in such
performance, in the building, erection or place, including one- or
two-family dwellings, within the one-year period preceding the
commencement of an action under this chapter, shall be presumptive
evidence that the building, erection or place, including one- or
two-family dwellings, is a public nuisance;
(c) Any building, erection or place, including one- or two-family
dwellings, used for the purpose of promotion of obscene material. The
term “obscene” shall have the same meaning as that term is defined in
subdivision one of section 235.00 of the penal law. The term “material”
shall have the same meaning as that term is defined in subdivision two
of section 235.00 of the penal law. Two or more convictions, as defined
in subdivision thirteen of section 1.20 of the criminal procedure law,
of persons for promotion of or possession with intent to promote obscene
material in the building, erection or place, including one- or
two-family dwellings, within the one-year period preceding the
commencement of an action under this chapter, shall be presumptive
evidence that the building, erection or place, including one- or
two-family dwellings, is a public nuisance;
(d) Any building, erection or place, other than a one-or two-family
dwelling classified in occupancy group J-3 pursuant to section 27-237 of
this code, which is in violation of article five of subchapter two of
chapter one of title twenty-six or of article three, four, six, ten,
twenty-two or twenty-four of subchapter one of chapter one of title
twenty-seven of this code. A conviction, as defined in subdivision
thirteen of section 1.20 of the criminal procedure law, of persons for
offenses, as defined in subdivision one of section 10.00 of the penal

law, in violation of the aforesaid provisions of this code in the
building, erection or place, including one- or two-family dwellings,
within the period of one-year preceding the commencement of an action
under this chapter, shall be presumptive evidence that the building,
erection or place, including one- or two-family dwellings, is a public
nuisance;
(e) Any building, erection or place, other than a one-or two-family
dwelling classified in occupancy group J-3 pursuant to section 27-237 of
this code, which is a nuisance as defined in section 17-142 of this code
or which is an infected and uninhabitable house as defined in section
17-159 of this code or which is in violation of subdivision two of
section 16-118 of this code;
(f) Any building, erection or place, including one- or two-family
dwellings, used for the purpose of a business, activity or enterprise
which is not licensed as required by law;
(g) Any building, erection or place, including one- or two-family
dwellings, wherein, within the period of one year prior to the
commencement of an action under this chapter, there have occurred three
or more violations of one or any combination of the provisions of
article two hundred twenty, two hundred twenty-one or two hundred
twenty-five of the penal law;
(h) Any building, erection or place, including one- or two-family
dwellings, used for any of the unlawful activities described in section
one hundred twenty-three of the alcoholic beverage control law;
(i) Any building, erection or place, including one- or two-family
dwellings, wherein there is occurring a violation of subchapter six,
eight or ten of chapter one of title twenty-four of this code;
(j) Any building, erection or place, including one- or two-family
dwellings, wherein there is occurring a violation of subchapter three or
four of chapter two of title twenty-four of this code;
(k) Any building, erection or place, including one- or two-family
dwellings, wherein there exists or is occurring a violation of the
zoning resolution;
(l) Any building, erection or place, including one- or two-family
dwellings, wherein there is occurring a criminal nuisance as defined in
section 240.45 of the penal law;
(m) Any building, erection or place, including one- or two-family
dwellings, wherein, within the period of one year prior to the
commencement of an action under this chapter, there have occurred two or
more violations on the part of the lessees, owners, operators, or
occupants, of one or any combination of the following provisions:
sections 165.40, 165.45, 165.50, 170.65, 170.70 or 175.10 of the penal
law or section four hundred fifteen-a of the vehicle and traffic law;
(n) Any building, erection or place, including one- or two-family
dwellings, in which a security guard, as defined in subdivision six of
section eighty-nine-f of the general business law, is employed in
violation of one or more of the following provisions: the alcoholic
beverage control law or sections 20-360.1 or 27-525.1 of this code;
(r) Any building, erection or place, including one-or two-family
dwellings, used for the creation, production, storage or sale of a false
identification document, as defined in subsection (d) of section one
thousand twenty-eight of title eighteen of the United States code, a
forged instrument, as defined in subdivision seven of section 170.00 of
the penal law, or a forgery device, as that term is used in section
170.40 of the penal law. It shall be presumptive evidence that the
building, erection or place, including one-or two-family dwellings, is a
public nuisance if there have occurred, within the one-year period
preceding the commencement of an action under this chapter, two or more

violations constituting separate occurrences on the part of the lessees,
owners, operators or occupants of one or any combination of the
following provisions: paragraph one, five or eight of subsection (a) of
section one thousand twenty-eight of title eighteen of the United States
code, section 170.05, 170.10, 170.15 or 170.40 of the penal law or,
under circumstances evincing an intent to sell or distribute a forged
instrument, section 170.20, 170.25 or 170.30 of the penal law.
§ 7-712 Temporary closing order; temporary restraining order;
defendant’s remedies. (a) A temporary closing order or a temporary
restraining order shall be vacated, upon notice to the corporation
counsel, if the defendant shows by affidavit and such other proof as may
be submitted that the public nuisance within the scope of this
subchapter has been abated. An order vacating a temporary closing order
or a temporary restraining order shall include a provision authorizing
agencies of the city to inspect the building, erection or place which is
the subject of an action pursuant to this chapter, periodically without
notice, during the pendency of the action for the purpose of
ascertaining whether or not the public nuisance has been resumed.
Intentional disobedience of or resistance to an inspection provision of
an order vacating a temporary closing order or a temporary restraining
order, in addition to any other punishment prescribed by law, shall be
punishable, on conviction, by a fine of not more than five hundred
dollars or by imprisonment not exceeding six months, or by both. The
police department shall, upon the request of the agency involved or upon
the direction of the mayor, assist in the enforcement of an inspection
provision of an order vacating a temporary closing order or temporary
restraining order.
(b) A temporary closing order or a temporary restraining order may be
vacated by the court, upon notice to the corporation counsel, when the
defendant gives an undertaking and the court is satisfied that the
public health, safety or welfare will be protected adequately during the
pendency of the action. The undertaking shall be in an amount equal to
the assessed valuation of the building, erection or place where the
public nuisance is being conducted, maintained or permitted or in such
other amount as may be fixed by the court. The defendant shall pay to
the city, in the event a judgment of permanent injunction is obtained,
its actual costs, expenses and disbursements in investigating, bringing
and maintaining the action.

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