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Nuisance Abatement Law gets an overhaul 

Music blaring from a neighboring rental house... suspected drug sales at a corner store... fights outside of a nightclub....

Living and working in a city has plenty of advantages, including the proximity of businesses, cultural offerings, and people, all of it adding convenience as well as richness and diversity to life. But that closeness can also breed tension.

For years, Rochester officials have tried to balance the needs of its residents and its businesses, hoping to support the quality of life of people who live here while also encouraging the businesses and entertainment venues that make a city worth living in.

One of the ways it has done that is through its Nuisance Abatement Law, which gives city officials a way to clamp down on problem properties and businesses. The law, which was established in 1985, has been amended several times. But over the years, critics have said that it's been applied unfairly; that businesses are penalized for the actions of their patrons; that the law doesn't really remedy the sources of the nuisance, just shuffles things around to different neighborhoods; and that it has lasting human consequences when people are evicted.

Responding to those concerns, city officials have spent the past several years wrestling with concerns about the law and how it's been applied. The city hired Strategic Community Intervention, former Mayor Bill Johnson's consulting firm, to review the law and met with neighborhood associations, business and property owners, and others.

And last week City Council approved significant changes to the law. The new legislation passed with a vote of 6 to 3, with Councilmembers Mitchell Gruber, Jacklyn Ortiz, and Elaine Spaull voting against it.

Officials have been in a delicate position with the nuisance law, because it impacts a large part of living and working in a city. Mini markets, apartments, music venues, restaurants, and any number of other businesses and properties can be issued nuisance points when a violation occurs.

Previously, a property or business where a violation occurred could be assigned 3, 4, or 6 points, depending on the type of offense.

If a location received 12 nuisance points within six months or 18 nuisance points within 12 months, it would be deemed a public nuisance and would risk having the city take serious action. That could include closing the building, suspending or revoking any city-issued business license, and suspending the eligibility for city grants.

The new legislation revises that point system. Violations involving firearms and other dangerous weapons and those involving the sale of controlled substances – including cannabis – are assigned 10 points. All other violations are now 6 points.

The legislation establishes a waiver process, through which the city's Neighborhood Service Centers will work with property owners and businesses to correct the nuisance-point violations. If a location hasn't been assessed other points in the past year, the property owner can work with the Neighborhood Service Center to create an abatement plan.

The legislation establishes a nine-member, Citywide Nuisance Advisory Board, with one resident and one business owner from each city quadrant and a resident from Center City. When a location is at risk of being deemed a nuisance, the property owner will be able to contest that assessment before the board. The board will work with that area's Neighborhood Service Center to decide whether the points should be assessed.

Once a location has enough points to be deemed a nuisance, the property owner will be notified of an abatement meeting, where the owner and the Neighborhood Service Center administrator will create an abatement plan. If the owner abides by the plan, no further action will be taken, and the points will be allowed to age out.

The legislation also creates an "innocent-owner defense." Once a location has hit its nuisance points threshold, the city's Law Department will decide to whether take court action or hold an administrative hearing. In the event of a hearing, the property owner, tenants, or both can raise a defense of innocence by showing that they did not know of the nuisance actions, or that they "did all that reasonably could be expected" to correct the activity.

If city officials determine that a business or property needs to be closed, tenants will be given 30 days to vacate the premises.

While city officials had been reviewing the law for several years, says Deputy Corporation Counsel Patrick Beath, "it did dovetail, right around the time we started drafting the revised law, with a couple of court decisions, both about the City of Rochester and its current nuisance law and also similar laws in other cities in the state."

In May, City Council's Neighborhood and Business Development Committee held two public hearings about the proposed amendments. Several community organizations, including the 19th Ward Community Association and the East End Business Association, supported the legislation, but a couple of landlords said they feared it would unfairly penalize property owners for the actions of their tenants.

One of the court decisions that influenced the changes to the law came late last year. The landlord and tenants of a building on Conkey Avenue sued the city after their building was deemed a nuisance and was closed. Drug dealers, not associated with the building, had allegedly been using the property to stash and sell drugs, which brought nuisance points. And while none of the violations were committed by its tenants or the landlord — one of the tenants even called the police to report the activity — the property hit the points threshold. Supreme Court Justice Evelyn Frazee ruled that the law, as it was written, was "unconstitutional as to innocent parties."

Councilmember Jacklyn Ortiz says she voted against the legislation last week because the changes don't go far enough to address Frazee's decision. "There has been an extensive amount of work to try to deal with some of those issues," Ortiz says, but there are still areas where the law isn't ready. "I didn't feel comfortable at this point signing on to something where I don't know if it's gone far enough to address the concerns the judge put forth," she says.

Ortiz adds she would like to see more emphasis on dealing with specific individuals, as opposed to dealing with a property, and she wants to consider other tools and services the city can use to address nuisance problems.

John Chmiel, the former owner of Water Street Music Hall, says he viewed the former points system as both good and bad. It helped deter bad bar owners, he says, but the system was too cut and dried. There wasn't a lot of wiggle room for the venue when it was a patron causing trouble, not the venue.

Chmiel cites the time a concert-goer smuggled in a small knife to a show at Water Street. Security guards were patting down people and using hand-held metal detectors, but a man managed to bring a knife into the venue down the back of his pants, Chmiel says.

The man got into an altercation, and security guards were able to act quickly and pull him out of the building, Chmiel says, but the man kept fighting them, ultimately lightly cutting someone. An ambulance and police were called, which resulted in nuisance points assessed against the venue.

"Due to the letter of the law," Chmiel says, "I was stuck and they had to give me points, even though I did all the right things."

Council member Ortiz isn't the only one with concerns about the city's revision to the nuisance law. In a letter to City Council, the New York Civil Liberties Union commended the city's initiative to make changes to the law, but raised several points:

• While the legislation adds procedures for building owners to work with the city to resolve concerns, the NYCLU said, apartment tenants aren't adequately protected. Tenants aren't given notice of the assessment of nuisance points and they aren't asked to participate in meetings to discuss an abatement plan.

"Our concern around that is there have been reports across the nation that indicate when building owners and landlords work with a city to abate a nuisance, the most common way is by evicting tenants," says Scout Katovich, an NYCLU legal fellow.

• Rochester's abatement law has a carve-out to protect victims of crime, including domestic violence, dating violence, stalking, or sexual abuse, by not assigning points to a property when the violation involves a victim who is connected to that property. But the way the law is phrased, Katovich says, it attaches protections when there is a victim. Some violations, like breaking a noise ordinance, are so-called "victimless" crimes, and it's possible those protections won't be implemented, even if the situation was caused by a domestic violence incident.

• While the proposed legislation creates an innocent-owner defense, it still puts the burden of proof on the property owner or tenants. It should be the city's responsibility, the NYCLU says, to show that the points were not assessed against innocent parties or victims.

• Based on a June 2017 court decision against the Town of Groton in Tompkins County, Rochester's nuisance law violates a person's right to petition the government (by calling the police) because it "authorizes the imposition of penalties based on criminal activity or other offenses, which generally come to the attention of Rochester through 911 calls and police reports," the NYCLU's letter says. That creates a chilling effect, the NYCLU says, and keeps people from calling the police.

• Katovich also says that the city has applied the nuisance law frequently, and that there has been more enforcement in communities of color.

Nuisance ordinances "are never a good idea," Katovich says. "They don't solve the problems. They only end up hurting people who are already vulnerable. And I would suggest that Rochester think about what are the issues it's really trying to get at, and what are the other tools it already has in its wheelhouse that could do a better job at getting at those problems."

Councilmember Michael Patterson, chair of Council's Neighborhood and Business Development Committee, says he believes the nuisance law is a working document. "It may well be open to amendment at a later point in time," he says, "once we've had a chance to review the impact and see how it's working."

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