Collateral Consequences: The Effects of (Alleged or Actual

Collateral Consequences The Effects of (Alleged or Actual) Crimes on Stable

Housing

2018 Partnership Conference

Thursday October 4 2018

115 pm ndash 230 pm

15 MCLE Credits in Areas of Professional Practice

Sponsored by the Committee on Legal Aid and the Committee on Continuing Legal Education of the New York State Bar Association

This program is offered for educational purposes

The views and opinions of the faculty expressed during this program are those of the presenters and authors of the materials Further the statements made by the faculty

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Copyright copy 2018

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Collateral Consequences The Effects of (Alleged or Actual) Crimes on Stable Housing

2018 Partnership Conference Thursday October 4 2018 | Albany

Name________________________________________________ (please print) I certify that I was present during this program Signature_____________________________Date_______________

PROPOSED HOUSING PROGRAMMING PARTNERSHIP 2018

1 Collateral Consequences The Effects of (Alleged or Actual) Crimes on Stable Housing

We are also proposing this as a panel discussion which will have two primary components

When Victimhood Can Mean Eviction and How to Stop it VAWA nuisance ordinances

orders of protection

Defending Against Eviction Based on an Alleged Crime Enumerated Crimes in Subsidized

Housing Burden of Proof Discriminatory Intent and Disparate Impact RPAPL 715

Panelists for the ldquovictimrdquo side

Amy Schwartz Empire Justice Center (Rochester office)

Marcie Kobak LSHV

Panelists for the ldquoalleged perpetratorrdquo side

Anca Grigore Bronx Defenders

Lauren Price Bronx Defenders

Table of Contents Collateral Consequences The Effects of (Alleged or Actual)

Crimes on Stable Housing

Copyright copy 2018

New York State Bar Association

1 Brief for American Civil Liberties Union et al as Amici Curiae

Supporting Appellants Board of Trustees of the Village of Groton v Pirro NYS3d (Nov 23 2016) 1

2 A06354 Summaryhelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 39

3 Alcorn v Muhammard 2017 NY Slip Op 27365 (NY Sup Ct Oct 23 2017)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 47

4 NY Criminal Procedure Law sect 16058 (McKinney 2009)helliphelliphelliphelliphelliphellip 59

7 NY Criminal Procedure Law sect 16050(McKinney 2015)helliphelliphelliphelliphelliphellip 71

8 Board of Trustees of the Village of Groton v Pirro 523 504 NYS3d

(June 15 2017)helliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 75

9 US HUD Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence Other Crime Victims and Others Who Require Police or Emergency Serviceshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 89

10 PowerPoint ndash Collateral Consequenceshelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphelliphellip 103

11 Faculty Biographies 115

DOCKET NO 523504

Supreme Court of the State of New York Appellate Division ndash Third Department

__________________________________________________________

BOARD OF TRUSTEES OF THE VILLAGE OF GROTON Respondent

-against-

NORFE J PIRRO et al Appellants

Index No 2015-0719 (And Another Related Proceeding)

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION EMPIRE JUSTICE CENTER NATIONAL COALITION AGAINST DOMESTIC VIOLENCE NATIONAL HOUSING LAW PROJECT NATIONAL LAW CENTER ON HOMELESSNESS amp POVERTY

NEW YORK CIVIL LIBERTIES UNION NEW YORK STATE COALITION AGAINST DOMESTIC VIOLENCE AND SARGENT

SHRIVER NATIONAL CENTER ON POVERTY LAW

SANDRA S PARK LENORA M LAPIDUS WOMENrsquoS RIGHTS PROJECT AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 BROAD STREET 18TH FLOORNEW YORK NEW YORK 10004 2125492500 sparkacluorg

Counsel for Amici Curiae

Dated November 23 2016

AMY SCHWARTZ-WALLACE EMPIRE JUSTICE CENTER TELESCA CENTER FOR JUSTICE ONE WEST MAIN STREET SUITE 200 ROCHESTER NEW YORK 146145854544060

ERIN BETH HARRIST NEW YORK CIVIL LIBERTIES UNIONFOUNDATION 125 BROAD STREET 19TH FLOORNEW YORK NEW YORK 10004 2126073300

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

PRELIMINARY STATEMENT 1

STATEMENT OF INTEREST 2

BACKGROUND 2

ARGUMENT 6

I THE ORDINANCE IGNORES AND VIOLATES TENANTSrsquo DUE PROCESS RIGHTS IN MYRIAD WAYS COMPOUNDING THE DUE PROCESS PROBLEMS THAT LANDLORDS FACE 6

A The Local Law Does Not Provide Tenants With Any Notice Or Opportunity To Be Heard Thereby Undermining Tenantsrsquo And Landlordsrsquo Rights 6

B The Vagueness And Breadth Of The Local Lawrsquos Terms Exacerbates The Risk Of Erroneous Deprivations Of Rights 9

C The Local Law Violates Due Process By Penalizing Innocent Tenants 12

II GROTONrsquoS LAW IMPERMISSIBLY BURDENS THE RIGHT TO PETITION 13

III THE LOCAL LAW POSES SEVERE CONSEQUENCES ON DOMESTICVIOLENCE SURVIVORS IN CONFLICT WITH STATE LAW 16

A Nuisance Ordinances Including Grotonrsquos Threaten The Lives Safety And Housing Of Domestic Violence Survivors 16

B Grotonrsquos Nuisance Ordinance Violates New York State Constitutional Home Rule Provisions Because It Is Both Inconsistent With and Pre-Empted by Existing Policy Providing Domestic Violence Victims with Access to Law Enforcement and Secure Housing 20

1 Grotonrsquos Law is Inconsistent with the Statutory Scheme Providing a Robust LawEnforcement Response to Victims of Domestic Violence 20

2 The Local Law Is Pre-Empted By and Inconsistent With Domestic Violence VictimsrsquoRight to Obtain and Maintain Housing Statewide 23

IV GROTONrsquoS LAW HARMS PEOPLE WITH DISABILITIES 26

CONCLUSION 28

ADDENDUM ndash AMICI STATEMENTS OF INTEREST A-1

TABLE OF AUTHORITIES

Anderson v City of NY 2000 WL 1010984 (EDNY 2000) 13

BE amp K Const Co v NLRB 536 US 516 (2002) 13

Briggs v Borough of Norristown No 213-cv-02191-ER (ED Pa filed Apr 29 2013) 19

Cowan v City of Buffalo 247 App Div 591 (4th Deprsquot 1936) 10

Deprsquot of Hous and Urban Dev v Rucker 535 US 125 (2002) 12

Eastern RR Presidents Conference v Noerr Motor Freight Inc 365 US 127 (1961) 13

Escalera v NYC Hous Auth 425 F2d 853 861 (2d Cir 1970) 8

Forro Precision Inc v Intrsquol Bus Machs 673 F2d 1045 (9th Cir 1982) 13 14

Grape v TownVill of East Rochester No 07 CV 6075 CJS (F) (WDNY July 6 2007) 19

Grayned v City of Rockford 408 US 104 (1972) 9 10

Greene v Lindsey 456 US 444 (1982) 8

Jackson v New York 381 F Supp 2d 80 (NDNY 2005) 14

Lott v Andrews Ctr 259 F Supp 2d 564 (ED Tex 2003) 14

Markham v City of Surprise No 215-cv-01696-SRB (D Ariz filed Sept 21 2015) 19

Mathews v Eldridge 424 US 319 (1976) 7

Matter of Adams v Franco 168 Misc 2d 399 (Sup Ct 1996) 12

Matter of Brown v Popolizio 166 AD2d 44 (1st Deprsquot 1991) 12

Matter of Corchado v Popolizio 171 AD2d 598 (1st Deprsquot 1991) 12

McGary v City of Portland 386 F3d 1259 (9th Cir 2004) 28

Meyer v Bd of County Commrsquors 482 F3d 1232 (10th Cir 2007) 13

Morris v Dapolito 297 F Supp 2d 680 (SDNY 2004) 13

Mullane v Cent Hanover Trust Co 339 US 306 (1950) 8

New York State Club Assn v City of New York 69 NY2d 211 (1987) 20

Ottensmeyer v Chesapeake amp Potomac Tel Co 756 F2d 986 (4th Cir 1985) 14

Peeso v City of Hornell No 611-cv-6306 (WDNY June 17 2011) 19

Peters v City of Wilkes-Barre No 315cv152 2016 WL 320748 (MD Pa Jan 27 2016) 4

Property Clerk of Police Dept of City of NY v Harris 9 NY3d 237 (2007) 13

Simmons v City of Rochester No 612 CV 06705 CJS (WDNY Dec 12 2012) 19

Smith v Goguen 415 US 566 (1974) 12

Texas Deprsquot of Hous amp Cmty Affairs v Inclusive Cmtys Proj Inc 135 S Ct 2507 (2015) 28

Tyson v NYC Hous Auth 369 F Supp 513 (SDNY 1974) 10 12

United States v James Daniel Good Real Prop 510 US 43 (1993) 7 9

Victor Valley Family Res Ctr v City of Hesperia No ED CV 16-00903-AB (SPx) 2016 US Dist LEXIS 92609 (C D Cal July 1 2016) 4 8

Vill of Hoffman Estates v Flipside Hoffman Estates Inc 455 US 489 (1982) 12

Constitution Statutes and Regulations

US Const amend I 13

42 USC sectsect 3601-19 28

24 CFR sect 100500 28

NY Const art I sect 9 cl 1 13

NY Const art IX sect 2(c) 20

NY Crim Proc Law sect 14010 21 22

NY Exec Law sect 296(5) 28

NY Real Prop Law sect 227 24-26

NY Real Prop Acts Law sect 744 24 25

2013 NY Laws ch 480 (Nov 13 2013) 23

2015 NY Laws ch 366 (Oct 21 2015) 24

Cal Civ Proc Code sect 11613 5

55 Ill Comp Stat Ann 55-100510 5

Iowa Code sectsect 562B25B amp 562A27B 5

Minn Stat sect 504B205 5

53 Pa Cons Stat Ann sect 304 5

Groton Property and Building Nuisance Law Local Law No 4 of 2014 (ldquoLocal Lawrdquo) passim

Other Authorities

1985 NY Op Atty Gen 45 1985 WL 194069 (Nov 22 1985) 25

ACLU Womenrsquos Rights Project amp Social Science Research Council Silenced How Nuisance Ordinances Punish Crime Victims in New York (2015) passim

Andrew R Klein Natrsquol Inst of Justice Practical Implications of Current Domestic Violence Research For Law Enforcement Prosecutors and Judges (June 2009) 16

Anna Kastner The Other War at Home Chronic Nuisance Laws and the Revictimization of Survivors of Domestic Violence 103 Cal L Rev 1047 (2015) 14

Cari Fais Denying Access to Justice The Cost of Applying Chronic Nuisance Laws to Domestic Violence 108 Colum L Rev 1181 (2008) 14 17

Ctr for Disease Control amp Prevention National Intimate Partner and Sexual Violence Survey (Mar 10 2015) 16

DCJS Domestic Violence Victim Data by County (2015) 16 22

Emily Werth Sargent Shriver Natrsquol Ctr on Poverty Law The Cost of Being ldquoCrime Freerdquo Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances (2013) 3

Filomena Gehart Domestic Violence Victims a Nuisance to Cities 43 Pepp L Rev 1101 (2016) 14

Gretchen W Arnold From Victim to Offender How Nuisance Property Laws Affect Battered Women J Interpers Violence (May 4 2016) 3 18 19

HUD HUD and City of Berlin New Hampshire Settle Allegations of Housing Discrimination Against Victims of Domestic Violence (Feb 19 2015) 4

HUD HUD and Philadelphia-Area Borough Settle Allegations of Housing Discrimination Against Victims of Domestic Violence (Oct 2 2014) 4

HUD Office of Fair Housing and Equal Opportunity Guidance for Assessing Claims of Housing Discrimination against Victims of Domestic Violence under the Fair Housing Act (FHA) and the Violence Against Women Act (VAWA) (Feb 9 2011) 26

HUD Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence Other Crime Victims and Others Who Require Police or Emergency Services (Sept 13 2016) 4

HUD Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions (Apr 4 2016) 10 11

Intrsquol Assoc of Police Chiefs Building Safer Communities Improving Police Response to Persons with Mental Illness (2010) 26

Jana L Jalinski et al The Experience of Violence in the Lives of Homeless Women A Research Report (2005) 23

Jennifer L Truman et al US Department of Justice Nonfatal Domestic Violence 2003-2012 Table 10 NCJ 244697 (April 2014) 17

Lenora Lapidus Doubly Victimized Housing Discrimination Against Victims of Domestic Violence 11 Am U J Gender Soc Polrsquoy amp L 377 (2003) 23

Matthew Desmond amp Nicol Valdez Unpolicing the Urban Poor Consequences of Third-Party Policing for Inner-City Women 78 Am Sociological Rev 117 (2012) 3 17

Melissa L Breger et al NY Law of Domestic Violence sect 224 (3d ed) 21

NY Exec Order No 19 (Oct 22 2007) 21

NY OPDV Domestic Violence Dashboard (2015) 16

NY State Office for the Prevention of Domestic Violence (ldquoOPDVrdquo) Domestic Violence Frequently Asked Questions 16

National Network to End Domestic Violence Domestic Violence Counts 2015 New York Summary (2016) 24

Theresa Langley Living Without Protection Nuisance Property Laws Unduly Burden Innocent Tenants and Entrench Divisions Between Impoverished Communities And Law Enforcement 52 Hous L Rev 1255 (2015) 14

PRELIMINARY STATEMENT

Amici submit this brief to describe how the Groton Property and Building Nuisance Law

Local Law No 4 of 2014 (ldquoLocal Lawrdquo) violates the rights of tenants This case presents the first

opportunity for the Court to examine a local nuisance ordinance that punishes landlords and

tenants based on calls for police service including when tenants need emergency assistance or

because of criminal activity and other violations on or near rental properties The ordinance

penalizes properties regardless of whether the tenants committed the violations

While the rights of tenants are seriously threatened by enforcement of ordinances like

Grotonrsquos they notably are not parties to this case Their absence underscores the serious due

process problems with the ordinance including the trampling of tenantsrsquo interests without notice

or an opportunity to be heard and the crippling of landlordsrsquo ability to defend against its

enforcement The ordinance is especially concerning because it harms domestic violence

survivors and people with disabilities many of whom rely on police for protection and

emergency assistance and undermines existing state laws and policies designed to protect them

For these reasons ordinances like Grotonrsquos have been harshly criticized by the US Department

of Housing and Urban Development (ldquoHUDrdquo) scholars state legislatures and advocates across

the country and successfully challenged in other cases based on First Amendment right to

petition due process and other constitutional and statutory grounds

The Local Law wholly ignores tenantsrsquo interests It authorizes ejection of tenants from

their homes without giving them any mechanism to challenge the Local Lawrsquos enforcement The

Local Law sanctions these harsh consequences against tenants based on vague definitions of

nuisance conduct and criminal allegations where no charges are brought or no convictions result

Moreover tenants can lose their homes based on conduct committed by others such as tenants

living in other units or based on crimes of which they are the victims This particularly threatens

the rights of domestic violence victims who are more likely to experience crime in their homes

and may need the law enforcement assistance that the Local Law targets The Local Law thus

runs afoul of numerous New York state legal protections encouraging domestic violence

survivors to report abuse and safeguarding their ability to access law enforcement assistance and

maintain secure housing It also imposes penalties based on incidents involving people with

disabilities pressuring landlords to evict them in violation of laws prohibiting disability-based

discrimination Amici strongly urge the Court to invalidate this local law

STATEMENT OF INTEREST

Amici are organizations dedicated to advancing civil liberties fair and secure housing

and the rights of survivors of domestic violence They have worked with tenants in communities

across New York State and the country who experienced harmful consequences stemming from

local nuisance ordinances including the chilling of their rights to seek emergency aid and the

loss of their housing The addendum contains detailed descriptions of each organization

BACKGROUND

Overly broad nuisance ordinances pose a serious threat to the safety and security of

communities throughout the United States Their detrimental impacts have been recognized

across the nation and documented in several New York municipalities The Local Law imposes

an undue burden on the residents of Groton particularly community members who are victims of

crime or persons with disabilities for it prevents people from accessing emergency services

Nuisance Ordinances Across the United States

People must have access to effective emergency and police assistance and the ability to

maintain secure housing in order to promote safe and stable communities ACLU Womenrsquos

Rights Project amp Social Science Research Council Silenced How Nuisance Ordinances Punish

Crime Victims in New York 1 (2015) (ldquoSilencedrdquo) However municipalities across the country

increasingly undermine peoplersquos housing and access to law enforcement by enacting laws that

penalize tenants and property owners based on police response or criminal activity occurring on

the property with no exceptions for people who seek emergency aid Id Emily Werth Sargent

Shriver Natrsquol Ctr on Poverty Law The Cost of Being ldquoCrime Freerdquo Legal and Practical

Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 2 (2013

These laws ndash typically called nuisance ordinances crime-free ordinances or disorderly

house laws ndash have a disproportionate impact on crime victims including domestic violence

victims people of color and people with disabilities for they penalize and deter people from

reporting crime and using emergency services Silenced supra at 4-6 Matthew Desmond amp

Nicol Valdez Unpolicing the Urban Poor Consequences of Third-Party Policing for Inner-City

Women 78 Am Sociological Rev 117 119 125 132 136-37 (2012) (ldquoUnpolicingrdquo) (nearly one

third of nuisance citations in Milwaukee over a two-year period were generated by domestic

violence and properties located in black neighborhoods were consistently more likely to receive

nuisance citations than those in predominantly white neighborhoods even when they were the

source of a similar number of calls) Gretchen W Arnold From Victim to Offender How

Nuisance Property Laws Affect Battered Women J Interpers Violence (May 4 2016) (ldquoVictim

to Offenderrdquo) (finding that St Louisrsquos nuisance law had long-lasting negative impacts on the

battered women who were studied) These laws generally require landlords to abate the nuisance

which often results in evictions or other penalties for victims or others who call 911 Silenced

supra at 3 Unpolicing supra at 119-120 Victim to Offender supra at 3-4

Federal government agencies and courts as well as state legislatures have recognized the

negative effects of these types of ordinances on vulnerable populations HUD recently issued

guidance to local governments regarding the application of the Fair Housing Act (ldquoFHArdquo) to the

enforcement of nuisance ordinances against victims of domestic violence and other crimes

HUD Office of General Counsel Guidance on Application of Fair Housing Act Standards to the

Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of

Domestic Violence Other Crime Victims and Others Who Require Police or Emergency

Services (Sept 13 2016) HUD informed municipalities that they have a ldquodifficult burdenrdquo to

bear in justifying ordinances that cut off access to emergency services or encourage eviction of

crime victims Id at 9 HUD also stated that repeal of these ordinances would be a step

governments could take to eliminate the barriers to fair housing for crime victims presented by

these laws Id at 12 The Secretary of HUD initiated two FHA complaints against Norristown

PA and Berlin NH because of the enforcement of nuisance ordinances against victims of

domestic violence1 In addition federal courts have determined that these types of ordinances

present serious constitutional problems in cases brought by the ACLU See eg Peters v City of

Wilkes-Barre No 315cv152 2016 WL 320748 (MD Pa Jan 27 2016) (denying the Cityrsquos

motion to dismiss and finding that the ordinance fails to provide any pre-deprivation due

process) Victor Valley Family Res Ctr v City of Hesperia No ED CV 16-00903-AB (SPx)

2016 US Dist LEXIS 92609 (CD Cal July 1 2016) (preliminarily enjoining ordinance and

1 HUD HUD and Philadelphia-Area Borough Settle Allegations of Housing Discrimination Against Victims of Domestic Violence (Oct 2 2014) httpportalhudgovhudportalHUDsrc=presspress_releases_media_advisories2014HUDNo_14-121 HUD HUD and City of Berlin New Hampshire Settle Allegations of Housing Discrimination Against Victims of Domestic Violence (Feb 19 2015) httpportalhudgovhudportalHUDsrc=presspress_releases_media_advisories2015HUDNo_15-022

recognizing serious constitutional questions because the ordinance lacks notice and a hearing to

the tenant) State legislatures have explicitly pre-empted local ordinances that penalize people for

calls for emergency assistance because of their impact on crime victims See 53 Pa Cons Stat

Ann sect 304 Iowa Code sectsect 562B25B amp 562A27B Minn Stat sect 504B205 55 Ill Comp Stat

Ann 55-100510 Cal Civ Proc Code sect 11613

Grotonrsquos Local Law

Grotonrsquos Local Law attributes nuisance points to properties for incidents of alleged

misconduct that occur on or near the property sect 152-3 Landlords are held strictly liable for the

misconduct once points have been assigned regardless of whether they were aware of the

alleged nuisance conduct sectsect 152-3 152-6(I) A property is declared a public nuisance once it

has accumulated twelve points within six months or eighteen points within twelve months sect

152-3 At that point property owners are required to submit a written abatement plan to the

Village Attorney sect 152-6(C)(6) If the abatement plan includes eviction the landlord must

commence eviction proceedings within ten business days of meeting the Attorney Id

The Local Law includes two separate procedures for enforcement First Article II

provides for the commencement of a civil action which can result in penalties including fines

and a temporary shutdown of the property sectsect 152-5 - 152-11 It provides for the ldquoopportunity to

abaterdquo but does not include a provision requiring notice and an opportunity to be heard by a

neutral factfinder as to whether an incident that led to police intervention is properly labeled a

nuisance sect 152-6(C)(6) In addition there is no provision mandating that the Village provide

tenants with any notice prior to initiating proceedings against the landlord that could ultimately

result in the closing of the building or their eviction Id Second Article III provides for

administrative enforcement by the Mayor and police department sectsect 152-12 - 152-14

Appellants Norfe Pirro and Heritage Homestead Properties LLC received notice in

September 2014 that four of their properties in the Village were deemed nuisances under the

Local Law R68-70 202-204 Several of the alleged nuisance incidents involved tenants who

were victims of domestic violence victims of other crimes and people with mental health

disabilities seeking police and emergency assistance for their respective situations R503-536

Although Pirro submitted a written abatement plan to the Village Attorney the Village

commenced an action pursuant to Article II seeking compliance with the Local Law penalties of

up to $1000 per day and a temporary closing order for the buildings R37-47 Pirro

counterclaimed raising constitutional statutory and common law challenges R81-88 He also

filed a separate Article 78 proceeding R103-109 On July 8 2016 the Supreme Court

invalidated Article III of the Local Law but upheld Article II R6-192 This appeal followed

ARGUMENT

I THE ORDINANCE IGNORES AND VIOLATES TENANTSrsquo DUE PROCESS RIGHTS IN MYRIAD WAYS COMPOUNDING THE DUE PROCESS PROBLEMS THAT LANDLORDS FACE

For tenants the Groton Local Law raises numerous due process issues including

violations based on the failure to provide notice or an opportunity to be heard the Local Lawrsquos

overbreadth and vagueness and the punishment of innocent tenants The rampant violations of

tenantsrsquo due process interests highlight the Local Lawrsquos constitutional infirmities

A The Local Law Does Not Provide Tenants With Any Notice Or Opportunity To Be Heard Thereby Undermining Tenantsrsquo And Landlordsrsquo Rights

The Local Law clearly provides that its enforcement can result in the ejection of tenants

Yet it provides absolutely no process to tenants to protect their interests in their home In the

2 Amici do not address Article III in this brief as the Village did not appeal its invalidation and we agree with the lower court and Appellant that it is unconstitutional

landmark Mathews v Eldridge the Supreme Court held that before depriving a person of a

property interest the government must consider ldquoFirst the private interest that will be affected

by the official action second the risk of an erroneous deprivation of such interest through the

procedures used and the probable value if any of additional or substitute procedural safeguards

and finally the Governmentrsquos interest including the function involved and the fiscal and

administrative burdens that the additional or substitute procedural requirement would entailrdquo

424 US 319 335 (1976) The Local Law violates tenantsrsquo procedural due process rights because

it completely fails to provide tenants with any notice or opportunity to be heard

Tenants have a strong interest in their leaseholds that is directly threatened by the Local

Law On its face the Local Law states that its enforcement could result in the eviction of the

tenant and mandates a ten-day timeline for doing so sect 152-6(C)(6) Eviction of the tenant is the

only specific method of abatement cited by the Local Law Moreover the enforcement of the

Local Law can result in a preliminary injunction with a temporary order closing the building and

the vacature of all residents and ultimately a judgment awarding a permanent injunction closing

the building for up to one year sectsect 152-8 152-7(C) By threatening the deprivation of their

homes the Local Law undermines serious tenant interests ldquo[A tenantrsquos] right to maintain control

over his home and to be free from governmental interference is a private interest of historic and

continuing importancerdquo United States v James Daniel Good Real Prop 510 US 43 53-54

(1993) The seizure of the property deprives both owners and tenants ldquovaluable rights of

ownership including the right of sale the right of occupancy the right to unrestricted use and

enjoyment and the right to receive rentsrdquo Id at 54

Second the risk of erroneous deprivation of the tenantsrsquo interests is high given that

tenants are not entitled to any notice or opportunity to be heard in the procedure set out by the

Local Law and given the inadequacies in the process for landlords Section 152-6 provides that

the summons and complaint name the building and at least one owner and the only pre-filing

notice that is provided for consists of notice by the Village Attorney to the owner and any

designated property manager sect 152-6(B) (C) There is no mention of tenants Indeed the Local

Law does not even contemplate any pre-filing opportunity for landlords to contest the nuisance

designation as it assumes that the owner must provide a written plan to abate the nuisance once

contacted by the Village Attorney sect 152-6(C)(6) Moreover only the owner can move for

vacature of any closing order that is entered sect 152-7(E)

Tenants have no knowledge of or opportunity to contest the levying of points that can

result in their removal from their homes Tenants are entitled to such notice and process separate

and apart from any eviction process initiated by landlords as they face forced expulsions of their

home due to the potential closing orders that can be imposed under the Local Law See Greene v

Lindsey 456 US 444 (1982) Mullane v Cent Hanover Trust Co 339 US 306 314 (1950)

Escalera v NYC Hous Auth 425 F2d 853 861 (2d Cir 1970) Hesperia 2016 US Dist

LEXIS 92609 at 19-20 Wilkes-Barre 2016 WL320748 at 7 The failure to provide any

process to tenants is particularly problematic because landlords frequently do not have any direct

knowledge about the incidents cited by the Village and thus lack the information to protect the

interests of themselves and their tenants The violation of tenantsrsquo due process rights feeds into

and exacerbates the due process problems presented for landlords

Even if a landlord responds to the Village by submitting an abatement plan the tenants

are left with no way of knowing or influencing whether their homes continue to hang in the

balance In this case Pirro submitted a plan that cited the departure and eviction of many of the

tenants and proposed quickly evicting others in violation of the ordinance he stated he did not

anticipate that the Village would file suit months later R78 R204-5 The tenants had no formal

means to contribute or respond to that plan and after its submission ascertaining whether the

Village would accept it demand a change or take action against the property

Lastly any governmental interests Groton might purport to have simply cannot justify the

serious due process deficiencies with the Local Law There is no compelling rationale for

depriving tenants of their homes using the Local Law without any notice or opportunity to be

heard given that ldquoreal property cannot abscondrdquo James Daniel Good 510 US at 57 Moreover

the Local Law undermines governmental interests in promoting effective law enforcement and

community safety and avoiding homelessness See Sections II and III infra For example in

January 2015 one of Pirrorsquos properties was cited because an unnamed tenant had reported to

police that a shotgun was under the common stairwell even though it was unclear who was

responsible this de-incentivized future reporting R516 (Police Report G15-0001) In another

instance the Village assigned nuisance points to Pirrorsquos property because the police responded to

a complaint of a woman yelling for help R510 (Police Report G14-0614) Pirrorsquos property also

was cited because a tenant reported a potential burglary R512 (Police Report G15-0570) Other

examples involving domestic violence are described in Section III

B The Vagueness And Breadth Of The Local Lawrsquos Terms Exacerbates The Risk Of Erroneous Deprivations Of Rights Due process requires that a law ldquogive the person of ordinary intelligence a reasonable

opportunity to know what is prohibited so that he may act accordinglyrdquo Grayned v City of

Rockford 408 US 104 108 (1972) see also City of Chi v Morales 527 US 41 52 56 (1999)

Papachristou v City of Jacksonville 405 US 156 166-67 (1972) A statute which delegates

unlimited discretion to enforcers of a criminal or civil law may be unconstitutionally overbroad

See eg Thornhill v Ala 310 US 88 97-98 (1940) ldquo[I]f arbitrary and discriminatory

enforcement is to be prevented laws must provide explicit standards for those who apply themrdquo

Grayned 408 US at 108 see also Tyson v NYC Hous Auth 369 F Supp 513 520

(SDNY 1974) Cowan v City of Buffalo 247 App Div 591 592-93 (4th Deprsquot 1936)

The Local Law is overly broad and vague The definition of public nuisance is limitless

vesting the Village with untrammeled discretion Section 152-3(E) defines violations as ldquopenal

law violations other than those set forth above including but not limited to murder attempted

murder assault attempted assault sex offenses etcrdquo (emphasis added) The ldquoetcrdquo could sweep

in any activity the Village chose without giving any prior warning to residents Moreover the

Local Law penalizes ldquosuffering or permitting the premises to become disorderlyrdquo sect 152-3(A)(2)

and ldquogeneral disturbances at a particular locationrdquo sect 152-3(B)(3) which similarly fail to inform

a reasonable person of the proscribed conduct

In addition the risk of arbitrary and discriminatory enforcement is high because the

standards for the evidence needed to prove a public nuisance are set extremely low The Local

Law provides that no charge or conviction for the criminal activity is required sect152-3

Competent evidence can include ldquocommon fame and general reputation of the building structure

or placerdquo or ldquoof the inhabitants or occupants thereof or of those resorting theretordquo sect152-4(A)

and knowledge and participation in the nuisance by the owners and lessees can be established by

this ldquogeneral reputationrdquo evidence sect152-4(B) HUD has stated that mere arrests (let alone

ldquogeneral reputationrdquo) are ldquonot a reliable basis upon which to assess the potential risk to resident

safety or property posed by a particular individualrdquo HUD Office of General Counsel Guidance

on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of

Housing and Real Estate-Related Transactions 5 (Apr 4 2016) Any ldquopolicy or practice that

fails to consider the nature severity and recency of criminal conduct is unlikely to be proven

necessary to serve a lsquosubstantial legitimate nondiscriminatory interestrsquordquo sufficient to avoid

liability under the FHA Id at 7 Likewise an ordinance that imposes penalties based on an

unbounded definition of nuisance activity and unreliable evidence violates due process because

of its overbreadth and vagueness

The Villagersquos enforcement illustrates the overbreadth problem In one instance a

property was assigned nuisance points because a tenant was involved in a dispute at a 7-11 store

down the street from one of Pirrorsquos buildings R523 (Police Report G14-1364) thus the Village

held tenants and owner responsible for a tenantrsquos activities even away from the property In

another case a patrol officer saw two tenants drinking beer on the sidewalk outside 184 Main

Street and cautioned them that it was illegal to drink on the sidewalk The tenants complied and

went back onto the property No other actions such as an arrest were taken yet the property still

received points for the incident R522 (Police Report G14-0802) The Village also attributed

points because a tenant engaged in an argument with a nonresident in the middle of the street

near Pirrorsquos property R515 (Police Report G14-0972)

And because the Local Law infringes on First Amendment right to petition the

government which includes the right to contact law enforcement (see Section II infra) a more

stringent vagueness test should apply Tenants and owners can be penalized under the Local Law

based on evidence of repeated criminal activity which has an ldquoadverse impactrdquo defined as

including ldquocomplaints made to law enforcement officials of illegal activity associated with the

propertyrdquo sectsect 152-3 152-4(C)(3) Thus the Local Law can be and was in fact triggered based

on calls to the police to report crime For example the Village levied points against Pirrorsquos

properties because police responded to tenantsrsquo reports of harassment In one incident two

tenants complained that other building residents broke their window and were yelling and

pounding on their door R509 (Police Report G15-0392) In the other case a tenant called the

police to enlist help in removing an intoxicated individual who was rapping on his window

R523 (Police Report G14-1179) By enforcing the Local Law in these situations the Village

penalized and unduly chilled the First Amendment rights of tenants to report crime to police

Given these First Amendment implications the Village bears an even greater burden in ensuring

the Local Law is detailed in what it proscribes See eg Vill of Hoffman Estates v Flipside

Hoffman Estates Inc 455 US 489 499 (1982) Smith v Goguen 415 US 566 573 (1974)

C The Local Law Violates Due Process By Penalizing Innocent Tenants

The Local Law raises additional serious constitutional problems because it penalizes

tenants who have not committed wrongful acts including tenants who are merely associated with

others deemed undesirable by the Village ldquoImplicit within the concept of due process is that

liability may be imposed on an individual only as a result of that personrsquos own acts or omissions

not merely because of his association with any grouprdquo Tyson 369 F Supp at 518 (citing to

Scales v United States 367 US 203 224 (1961)) Courts repeatedly have held that tenants

cannot be blamed for the wrongful acts of others See id Matter of Adams v Franco 168 Misc

2d 399 405-406 (Sup Ct 1996) Matter of Corchado v Popolizio 171 AD2d 598 598 (1st

Deprsquot 1991) Matter of Brown v Popolizio 166 AD2d 44 47 (1st Deprsquot 1991) The US

Supreme Court explicitly said that this principle survives Deprsquot of Hous and Urban Dev v

Rucker where the government acts as a sovereign rather than a landlord 535 US 125 135

(2002) The Village in enforcing the Local Law exercises its sovereign powers

The Village draws no distinction between those who commit the nuisance conduct and

those who are merely present nearby or who are victimized by it Tenants and owners face a

designation of public nuisance based on incidents at the building There is no mandate that the

owners or tenants perpetrate any offenses before they are found at fault Disturbingly the

offenses with highest point values are likely to have victims who are tenants ndash for example

murder attempted murder assault and sex offenses all garner twelve points which reaches the

threshold for enforcement Thus victims of the most heinous penal law offenses can lose their

homes based on the crimes perpetrated against them And because points are levied against the

property as a whole tenants are at serious risk of losing their homes based on the conduct of

other tenants over whom they have no control Any governmental interest in deterring criminal

activity is outweighed by the innocent tenantsrsquo interest in their leaseholds See Property Clerk of

Police Dept of City of NY v Harris 9 NY3d 237 244-45 (2007) (noting that closure may be

inappropriate if an innocent co-owner relies on the unit a consideration that is only heightened

when considering the rights of innocent tenants of other units)

II GROTONrsquoS LAW IMPERMISSIBLY BURDENS THE RIGHT TO PETITION

The First Amendment of the US Constitution guarantees the right ldquoto petition the

Government for a redress of grievancesrdquo US Const amend I Likewise under New Yorkrsquos

Constitution ldquoNo law shall be passed abridging the rights of the peoplehellipto petition the

government or any department thereofrdquo NY Const art I sect 9 cl 1 Courts have recognized

repeatedly that the right to petition includes the ability to seek law enforcement assistance See

eg BE amp K Const Co v NLRB 536 US 516 524 (2002) Eastern RR Presidents Conference

v Noerr Motor Freight Inc 365 US 127 133 139 (1961) Meyer v Bd of County Commrsquors

482 F3d 1232 1243 (10th Cir 2007) Forro Precision Inc v Intrsquol Bus Machs 673 F2d 1045

1060 (9th Cir 1982) ldquoIt is axiomatic lsquothat filing a criminal complaint with law enforcement

officials constitutes an exercise of the First Amendment rightrsquo to petition government for the

redress of grievancesrdquo Morris v Dapolito 297 F Supp 2d 680 692 (SDNY 2004) (citations

omitted see also Anderson v City of NY 2000 WL 1010984 at 4 (EDNY 2000) (finding

that the right to petition ldquoarguably extends to [the] right to lodge complaints with the

policerdquo) ldquo[T]here is lsquono doubtrsquo as to the existence of this rightrdquo and it ldquoapplies equally to the

victims of crimesrdquo Lott v Andrews Ctr 259 F Supp 2d 564 570-71 (ED Tex 2003) Chilling

that right undermines community safety Ottensmeyer v Chesapeake amp Potomac Tel Co 756

F2d 986 993-994 (4th Cir 1985) (chilling effect on information flow to law enforcement would

cause the police to be ldquohandicapped in protecting the publicrdquo) Forro Precision Inc 673 F2d at

1060 (monetary fines could have a ldquochilling effectrdquo on a community memberrsquos desire to further

report crimes) Jackson v New York 381 F Supp 2d 80 (NDNY 2005) (First Amendment

right to petition encompasses actions seeking enforcement of orders of protection)

Under Grotonrsquos ordinance scheme each time victims including of domestic violence

call the police to report crime in their homes they are one step closer to eviction By imposing

strict liability on victims for crimes that occurred in their homes the Local Law impermissibly

punishes tenants who seek police assistance in response to those crimes The fear ndash and real

likelihood ndash of eviction created by the Local Law presents a substantial barrier to Groton

residents who may want to call law enforcement for help chilling their right to petition See

Filomena Gehart Domestic Violence Victims a Nuisance to Cities 43 Pepp L Rev 1101 1124

(2016) Anna Kastner The Other War at Home Chronic Nuisance Laws and the Revictimization

of Survivors of Domestic Violence 103 Cal L Rev 1047 1071 (2015) Theresa Langley Living

Without Protection Nuisance Property Laws Unduly Burden Innocent Tenants and Entrench

Divisions Between Impoverished Communities And Law Enforcement 52 Hous L Rev 1255

1269 (2015) Cari Fais Denying Access to Justice The Cost of Applying Chronic Nuisance Laws

to Domestic Violence 108 Colum L Rev 1181 1221 (2008)

The Record amply reflects that these potentially chilling activities occurred in Groton

Appellant Pirro explained the dilemma ldquoAnother problem is I am required to evict people that

did not do anything wrong or is considered a violation of the lease [sic]rdquo R208 A victim-

tenantrsquos (Brig) home was assigned four points when she called police from a local store and

advised officers that she was afraid to go home because her abuser pushed her was intoxicated

volatile and had a weapon R523 (Police Report G15-0035) The abuser was not a leaseholder

and left Brigrsquos home after the officers directed him to go Discussing this incident Pirro stated

ldquoI saw no other way to lsquoabate the nuisancersquo other than evicting Brig the innocent victimhellipas a

result of her calling the police to report that she was being beatenrdquo R209 Similarly police were

summoned to a lawful residentrsquos (Taomina) home to intervene in a domestic incident involving

her cohabitant R534 (Police Report G14-1281) Although the police enforced the stay-away

order of protection the victim had in place against her abuser four nuisance points were

subsequently levied against her home Id According to the Appellant ldquoI either have to evict the

tenant who was lawfully within his home or issue a persona non grata order to a woman who is

his family member and the beneficiary of an order of protection It is a Catch 22rdquo R208

Further Police Reports G14-0675 G14-0684 G14-1294 G15-0103 G15-0159 appear to

involve a family (Grady amp Peters) plagued by domestic violence and concomitant substance

abuse R533-535 (Nuisance Law Summaries) As domestic violence typically involves a pattern

of incidents this family aggregated 18 nuisance points at their home between July 2014 and

February 2015 presumably as a result of disorderly conduct and or noise violations Virtually all

of these incidents involved one party yelling or otherwise behaving aggressively toward the other

party when intoxicated The points were assigned to the home punishing the innocent tenant as

well as the domestic abuser

Given the Respondentsrsquo aggressive enforcement of the Local Law tenants who are crime

victims are chilled from fully exercising their rights to petition the government for aid

III THE LOCAL LAW POSES SEVERE CONSEQUENCES ON DOMESTIC VIOLENCE SURVIVORS IN CONFLICT WITH STATE LAW

A Nuisance Ordinances Including Grotonrsquos Threaten The Lives Safety And Housing Of Domestic Violence Survivors

ldquoDomestic violence is a pattern of coercive tactics which can include physical

psychological sexual economic and emotional abuse perpetrated by one person against an adult

intimate partner with the goal of establishing and maintaining power and control over the

victimrdquo NY State Office for the Prevention of Domestic Violence (ldquoOPDVrdquo) Domestic

Violence Frequently Asked Questions Alarmingly the Center for Disease Control and

Prevention found that on average nearly twenty people per minute are physically abused by an

intimate partner in the United States Ctr for Disease Control amp Prevention National Intimate

Partner and Sexual Violence Survey (Mar 10 2015) This equates to more than 10 million

women and men per year Id Domestic violence-related calls for service have been found to

constitute the single largest category of calls received by police Andrew R Klein Natrsquol Inst of

Justice Practical Implications of Current Domestic Violence Research For Law Enforcement

Prosecutors and Judges 6 (June 2009) New Yorkrsquos Division of Criminal Justice (ldquoDCJSrdquo)

reports that police outside of New York City responded to 189327 domestic incidents in 2015

NY OPDV Domestic Violence Dashboard (2015) These law enforcement agencies responded

to 48590 assaults sex offenses and violations of orders of protection last year DCJS Domestic

Violence Victim Data by County (2015) (ldquoDCJS Victim Datardquo)

The National Crime Victimization Survey found that most domestic violence (77)

occurred at or near the victimrsquos home Jennifer L Truman et al US Department of Justice

Nonfatal Domestic Violence 2003-2012 Table 10 NCJ 244697 (April 2014)

httpswwwbjsgovcontentpubpdfndv0312pdf3 Accordingly an ordinance that targets

criminal activity occurring in or near the home will indisputably impact most victims of domestic

violence in that community Fais 108 Colum L Rev at 1195

By imposing the threat or reality of eviction whenever victims seek or receive help from

police these ordinances blame victims for the very abuse they suffer The link between nuisance

ordinances and their harmful impact on housing safety and security for victims of domestic

violence has been well documented See generally Silenced supra Unpolicing supra Victim to

Offender supra This toxic system creates a ldquodouble victimizationrdquo that discourages victims

from calling police exacerbates barriers that victims already face in securing and maintaining

housing and forces them to remain silent and endure further abuse in order to keep their homes

Desmond and Valdezrsquos 2012 empirical study confirmed these harmful effects See

generally Unpolicing supra Reviewing every nuisance property citation issued in Milwaukee

during a two-year period researchers found that domestic violence was the third most common

reason a citation was issued and in 83 of these cases the landlords either initiated formal

eviction proceeding against the household where abuse occurred forced the tenant out by

informal means or threatened them with eviction if 911 was called again Id at 137

Characterizing this problem as a ldquodevilrsquos bargainrdquo the researchers summarized their findings by

stating ldquoThe nuisance property ordinance has the effect of forcing abused women to choose

between calling the police on their abusers (only to risk eviction) or staying in their apartments

(only to risk more abuse)rdquo Id (emphasis by the original author)

3 Unlike domestic violence most violence committed by acquaintances (61) and strangers (75) occurred in locations other than the home such as commercial places parking lots or garages school or open areas Id

Using evidence from interviews with domestic violence victims Professor Gretchen

Arnoldrsquos 2016 study found that the St Louis nuisance property law directly harmed victims of

domestic violence in similar ways including by ldquohindering their access to safe and secure

housing discouraging them from calling 911 increasing their vulnerability to violence and

compounding the trauma of the intimate partner violencerdquo Victim to Offender supra at 1 St

Louis landlords would attempt to forestall a nuisance citation by banning abusers from the

property Id However if the abuser showed up uninvited the victim would be penalized by the

landlord for failing to abide by the ban as well as penalized under the nuisance ordinance

because they called 911 for help in enforcing the landlordrsquos restriction Id Arnold observed that

landlords most commonly used eviction to abate the nuisance setting off ldquoa chain of negative

events from which it was hard to recoverrdquo including subsequent homelessness Id

The participants in Arnoldrsquos study also reported that not having access to police services

increased victimsrsquo fear that they would be physically harmed by their abusers Id at 14 In some

cases the violence escalated because the abuser was unconstrained by potential criminal justice

system intervention Id at 15 In the absence of police protection some victims resorted to ad

hoc self-help measures such as recruiting family members to serve as ldquopersonal body guardsrdquo or

barricading themselves in their homes Id Despite the danger posed by an abuser landlords told

victims to ldquogo down the blockrdquo to call 911 so their home addresses would not trigger the

ordinance Id at 17 ldquoThe result is that nuisance property laws obscure the real crime of intimate

partner violence and turn the victim into the offenderrdquo Id at 21 (emphasis in original)

Finally the Silenced report took a close look at two municipalities in New York ndash

Binghamton and Fulton ndash whose ordinances like Grotonrsquos did not contain any exception for

victims of crime such as domestic violence Silenced supra In both communities the ordinances

were ostensibly enacted to protect the cityrsquos quality of life Id at 20 However more than two

years of records revealed systemic enforcement against the victims of domestic violence In both

communities domestic violence was the single largest category of activity triggering

enforcement of the respective nuisance ordinance Id at 2 Domestic violence made up nearly

half of incidents included in nuisance enforcement warnings issued by the Fulton Chief of

Police Id at 23 In Binghamton while domestic violence only accounted for 13 of the

incidents it accounted for 38 of all points imposed in enforcement actions Id at 17

Binghamton landlordsrsquo most common response to a nuisance warning was to remove the tenants

who were the subject of police response4 Id at 19 In some cases landlords took negative action

against all tenants at the property such as informing them they would all be evicted or face

higher rents if they call 911 Id

Three federal cases commenced against New York municipalities further illustrate the

harmful effects of nuisance ordinances on victims of domestic violence Second Amended

Complaint Grape v TownVill of East Rochester No 07 CV 6075 CJS (F) (WDNY July 6

2007) Complaint Peeso v City of Hornell No 611-cv-6306 (WDNY June 17 2011)

Simmons v City of Rochester No 612 CV 06705 CJS (WDNY Dec 12 2012) The ACLU

has filed similar challenges on behalf of survivors of domestic violence against municipalities in

Pennsylvania and Arizona resulting in repeal of the ordinances and significant monetary

settlements awarded to the plaintiffs First Amended Complaint Briggs v Borough of

Norristown No 213-cv-02191-ER (ED Pa filed Apr 29 2013) Amended Complaint

Markham v City of Surprise No 215-cv-01696-SRB (D Ariz filed Sept 21 2015)

4 The records reviewed in Fulton indicated that the City warned landlords about the nuisance conduct at their properties and directed abatement but did not reveal what abatement plan or methods the landlord used in response Silenced at 22

B Grotonrsquos Nuisance Ordinance Violates New York State Constitutional Home Rule Provisions Because It Is Both Inconsistent With and Pre-Empted by Existing Policy Providing Domestic Violence Victims with Access to Law Enforcement and Secure Housing

While New York Statersquos Constitution grants broad authority to local governments to

address certain local matters there are two firm restrictions on the scope of home rule (1) the

local government may not adopt a local law inconsistent with constitutional or general law and

(2) the locality may not exercise its police power when the Legislature has restricted such

exercise by preempting the area of regulation New York State Club Assn v City of New York

69 NY2d 211 217 (1987) NY Const art IX sect 2(c) ldquoThe legislative intent to preempt need

not be express It is enough that the Legislature has impliedly evinced its desire to do so and that

desire may be inferred from a declaration of State policy by the Legislature or from the

legislative enactment of a comprehensive and detailed regulatory scheme in a particular areardquo

Id Similarly inconsistency ldquohas been found where local laws prohibit what would have been

permissible under State law or impose lsquoprerequisite ldquoadditional restrictionsrdquorsquo on rights under

State law so as to inhibit the operation of the Statersquos general lawsrdquo Id (citations omitted)

Amici submit that the Village of Grotonrsquos nuisance ordinance impermissibly intrudes on

or is inconsistent with several matters of existing statewide policy namely the right to access

protections granted to victims of ldquofamily offensesrdquo the right of victims of domestic violence to

obtain and maintain secure housing despite their victimization status as well as the right of

residents to petition for emergency aid previously discussed in Section II

1 Grotonrsquos Law is Inconsistent with the Statutory Scheme Providing a Robust Law Enforcement Response to Victims of Domestic Violence

In response to growing awareness of the pervasiveness of domestic violence lawmakers

in New York have enacted legislation that institutionalizes and emphasizes a robust criminal

justice response An Executive Order establishing protections for victims states ldquodomestic

violence is a serious public policy concern for the State of New York requiring the Statersquos

participation in the coordinated community response to support victims and hold abusers

accountablerdquo NY Exec Order No 19 (Oct 22 2007) Overall New Yorkrsquos statutory scheme

provides for the protection of victims and accountability for offenders Punishing victims for the

offenses against them as the Local Law does runs directly counter to this scheme

Among the many protections passed over the last few decades the Legislature

specifically provides victims of ldquofamily offensesrdquo with certain critical rights designed to support

them State lawmakers categorized penal law offenses most often endured by domestic violence

victims as family offenses in order to ensure that victims can access protections specifically

targeted to their needs Melissa L Breger et al NY Law of Domestic Violence sect 224 (3d ed)

The legislature expanded the enumerated family offenses to address the physical sexual

financial and emotional harms that domestic violence perpetrators most frequently inflict Id

The list now includes disorderly conduct harassment and aggravated harassment sexual

misconduct forcible touching sexual abuse stalking strangulation criminal mischief

menacing assault and attempted assault coercion identity left and grand larceny NY Crim

Proc Law sect 53011(1)

Under New Yorkrsquos statutory scheme victims of enumerated family offenses are entitled

to key rights when law enforcement responds to calls for police service including but not limited

to completion of a comprehensive Domestic Incident Report documenting the abuse (NY

Crim Proc Law sect 14010(5)) receipt of a Victimrsquos Rights Notice providing victims in crisis

with critical information about their legal rights remedies and resources (NY Crim Proc Law

sect 53011(6)) family offense orders of protection (NY Crim Proc Law sect 53011) and primary

aggressor determinations to avoid dual arrests in domestic violence situations where arrest is

mandated by statute (NY Crim Proc Law sect 14010(4)(c))

Any law that undermines or is inconsistent with this scheme harms the very category of

domestic violence victims that the Legislature has specifically and repeatedly deemed worthy of

these heightened rights and protections By explicitly defining all assault attempted assault and

sex offense crimes as a ldquopublic nuisancerdquo under sect152-(3)(E) the Local Law include many of the

enumerated family offenses ndash specifically Assault 2nd and 3rd Attempted Assault Sexual

Misconduct Forcible Touching and Sexual Abuse 3rd and 2nd ndash as nuisance violations NY

Crim Proc Law sect 53011(1) Further the family offense of Disorderly Conduct and disorderly

behavior appears twice as a nuisance violation in sect 152-3(A)(2) and (B)(1) Alarmingly the

assigned maximum 12-point values under sect 152-3(E) are reserved for the most serious crimes

routinely committed against domestic violence victims in New York DCJS Victim Data supra

This leads to the absurd result that a domestic violence victim in Groton who endures a horrific

offense will have the highest number of points levied against their home triggering the nuisance

law and its punitive abatement measures Given its vagueness and overbreadth as discussed

more fully in Section IB all of the other enumerated family offenses together with all other

penal laws not already categorized may be swept into the Local Lawrsquos maximum point

designation Section 152-3 also assesses double points for repeat violations By definition

domestic violence is a pattern of incidents thus points are most easily accumulated by victims

of the enumerated family offenses See eg the Grady-Peters incidents detailed in R533-535

The Legislature made clear that these offenses are to be taken seriously through

documentation investigation arrest and notice protections Treating these victims as a nuisance

as Grotonrsquos law does is inconsistent with the will of the Legislature Where a nuisance

ordinance instills fear or serves as a deterrent for seeking help victims will not receive the life-

saving information in the Victimrsquos Rights Notice or the recording of a Domestic Incident Report

By considering everyone culpable as a nuisance the Local Law is inconsistent with the

state statutory mandate for determining a primary aggressor in domestic violence situations as

well as the 2013 law curbing the improper practice of prosecuting victims of domestic violence

for ldquoviolatingrdquo orders of protection issued on their behalf when the abusive enjoined party

violates the order 2013 NY Laws ch 480 (Nov 13 2013) The bill memo states ldquoA practice of

prosecuting or otherwise penalizing the victim decreases victim safety by shifting responsibility

for violence away from abusers emboldening abusers deterring victims from calling the police

when abusers violate an order of protectionhelliprdquo Id By penalizing innocent tenant victims for the

domestic violence committed against them Grotonrsquos law suffers from these same infirmities

Given the Respondentsrsquo aggressive enforcement of the Local Law against victims of

family offenses and inconsistency with protections for victims of family offenses the rights of

the tenants are necessarily chilled and restricted in their ability to seek police protection

2 The Local Law Is Pre-Empted By and Inconsistent With Domestic Violence Victimsrsquo Right to Obtain and Maintain Housing Statewide

Domestic violence is a leading cause of homelessness and housing insecurity According

to the US Department of Justice one in four homeless women is homeless because she endured

domestic violence Jana L Jalinski et al The Experience of Violence in the Lives of Homeless

Women A Research Report 2 (2005) Many domestic violence victims experience housing

discrimination as landlords refuse to rent to them or evict them because of their victimization

See eg Lenora Lapidus Doubly Victimized Housing Discrimination Against Victims of

Domestic Violence 11 Am U J Gender Soc Polrsquoy amp L 377 (2003) Consistent with these

statistics a one-day census conducted by the National Network to End Domestic Violence found

that 55 of support and advocacy needs relating to domestic violence in New York were for

housing and landlord issues and 61 of unmet needs were for housing National Network to End

Domestic Violence Domestic Violence Counts 2015 New York Summary (2016)

In response to this pervasive problem New Yorkrsquos legislature recently adopted laws

providing protection from discrimination based upon domestic violence victim status in housing

as well as from eviction 2015 NY Laws ch 366 (Oct 21 2015) The amendment to the Real

Property Law sect 227-d prohibits discrimination based upon domestic violence status and provides

that no person firm or corporation owning or managing any dwelling shall because of an

individualrsquos or family memberrsquos domestic violence victim status refuse to rent a residential unit

discriminate in the terms conditions or privileges of any such rental or print or circulate any

statement which expresses any limitation specification or discrimination NY Real Prop Law

sect 227-d(2) Violation of the law is a misdemeanor and upon conviction violators shall be

punished by a fine of not less than $1000 and not more than $2000 for each offense Id at

(2)(b)(1) Where victims are able to show discriminatory conduct occurred they are entitled to

damages attorneyrsquos fees and other legal relief Id at (1) Signaling that this state law occupies

the field the amendment allows local governments to provide more protection for victims they

cannot provide less Id at (5) (ldquoNothing in this section shall be construed as prohibiting a

municipality from retaining or promulgating local laws or ordinances imposing additional or

enhanced protections prohibiting discrimination against victims of domestic violencerdquo) The

Legislature simultaneously amended the landlord-tenant law making it unlawful to evict a

person based upon their status as a victim of domestic violence NY Real Prop Acts Law sect

744 Both laws define victims of enumerated family offenses (and other offenses) as subject to

these protections Id at (1) NY Real Prop Law sect 227-d (1)

Grotonrsquos nuisance ordinance undermines these new protections in several ways First the

new laws apply to housing providers That means property owners like Pirro are subject to these

anti-discrimination and anti-eviction mandates while also subject to the nuisance ordinance As a

result they are trapped between two legal mandates If they refuse to evict or discriminate

against the domestic violence victim they are subject to the full brunt of the nuisance ordinance

If they discriminate against or evict the victim based on domestic violence they are subject to

the full scope of civil and criminal remedies available to these victims under the law Second

both laws also provide that landlords may evict or deny housing where such conduct is premised

on any other lawful ground NY Real Prop Law sect 227-d(2) NY Real Prop Acts Law sect 744

Municipalities could empower and require landlords like Pirro to engage in the discrimination

that Real Property Law sect 227-d prohibits by characterizing domestic violence as nuisance

activities and pressuring landlords to evict accordingly Finally these housing protections for

domestic violence victims are all for naught if a property owner accumulates points and loses

their ability to rent their property pursuant to a nuisance ordinance

Penalizing domestic violence victims under the Local Law is also inconsistent with the

Executive Lawrsquos fair housing protections Pre-dating the anti-discrimination protections of 2015

an Attorney General Opinion announced that refusing to rent to battered women

ldquoindiscriminately penalizes victims of domestic violence (and any children they may have)rdquo and

ldquogoes further than necessary to protect the landlord and other tenants and thus violates Executive

Law sectsect 2962-a(a) and (b) and 2965(a)(1) and (2)rdquo prohibitions against sex discrimination

1985 NY Op Atty Gen 45 1985 WL 194069 (Nov 22 1985) By allowing the imposition of

points against victims of domestic violence most of whom are women Grotonrsquos Local Law is

thus inconsistent with the Human Rights Law prohibitions on sex discrimination in housing See

also HUD Office of Fair Housing and Equal Opportunity Guidance for Assessing Claims of

Housing Discrimination against Victims of Domestic Violence under the Fair Housing Act

(FHA) and the Violence Against Women Act (VAWA) (Feb 9 2011)

Lastly the Local Law is inconsistent with state statutes that empower victims to

terminate their leases early Real Property Law sect 227-c provides that a civil or criminal court that

issued a domestic violence victimrsquos temporary or permanent order of protection has the authority

to issue an order terminating the lease early if a victim can demonstrate that despite the

existence of the order of protection a continuing substantial risk of physical or emotional harm

exists and relocation will substantially reduce the risk Id Upon receiving this early termination

order the tenant is released from any further liability under the rental agreement and may vacate

the home without a lease violation on their record or financial penalty such as a balloon payment

of amounts due under the remaining term Id The victim may also seek the removal of the

abuser from the lease through a lease bifurcation However without the ability to call the police

and use Domestic Incident Reports to prove continuing harms many victims will be unable to

satisfy the standard for early lease termination And before they may even get their day in court

to access relief under the early lease termination protections they may face eviction and all the

negative consequences that flow therefrom

IV GROTONrsquoS LAW HARMS PEOPLE WITH DISABILITIES

Nuisance ordinances such as Grotonrsquos also disproportionally impact people with mental

or physical disabilities who often have a greater and more frequent need to access emergency

services including medical treatment and law enforcement assistance See Intrsquol Assoc of Police

Chiefs Building Safer Communities Improving Police Response to Persons with Mental Illness

6 (2010) (behaviors resulting from mental illness are a factor in up to 7 percent of law

enforcement calls for service) This is particularly true for those with significant impairments

who may not be receiving sufficient community-based services and support and have little

choice but to call law enforcement for problems ranging from non-violent disagreements to

mental disturbances and other medical emergencies Despite the lack of any crime law

enforcement often characterize these interactions as ldquodisorderly conductrdquo or ldquodisturbancesrdquo

frequently considered a violation under nuisance housing ordinances such as Grotonrsquos See

Silenced supra at 4-5 (noting the frequent citation of calls relating to non-criminal activity from

individuals with mental health disabilities under an Iowa nuisance ordinance)

Enforcement of the Local Law illustrates the targeting and penalization of people with

disabilities Mr Pirro was cited based on a police report from an officer who had heard sounds of

distress coming from an apartment R534 (Police Report G14-0840) The officer found the

tenant a counseling aid in a state of mental and physical distress because of a death of a patient

Id The tenant who admitted to abusing drugs as a coping mechanism requested medical

assistance and was voluntarily transported to a hospital Despite the tenantrsquos acute need for help

the incident was labeled a noise complaint given two points and served as a basis for

demanding abatement under the Local Law In another incident officers assisted an individual

engaging in self-harm who had a known history of suicide attempts R536 (Police Report G15-

1077) This incident was labeled a ldquogeneral disturbancerdquo pursuant to sect 152-3(B)(3) and awarded

four points Id Targeting people for possible eviction in these situations deters people from

seeking needed assistance undermining the safety of those with disabilities and their families

Given this enforcement there is a serious risk that Groton is forcing or motivating

landlords including Mr Pirro to violate bans on housing discrimination against people with

disabilities in both federal and state laws The FHA prohibits discrimination in the sale rental or

Amy E Schwartz-Wallace Empire Justice Center Telesca Center for Justice One West Main Street Suite 200 Rochester New York 14614 5854544060 aschwartzempirejusticeorg Erin Beth Harrist New York Civil Liberties Union Foundation 125 Broad Street 18th Floor New York NY 10004 2126073300 eharristnycluorg Counsel for Amici Curiae American Civil Liberties Union Empire Justice Center National Coalition Against Domestic Violence National Law Center on Homelessness amp Poverty New York Civil Liberties Union Sargent Shriver National Center on Poverty Law

A06354 Summary BILL NO A06354B

SAME AS SAME AS S00005

SPONSOR Peoples-Stokes

COSPNSR Weinstein Paulin Bichotte Weprin Otis Bronson Walker Fahy

Galef Zebrowski Stec

MLTSPNSR

Add S227-d RP L add S744 RPAP L

Prohibits discrimination in housing based upon domestic violence status and

establishes a task force to study the impact of source of income on access to

housing

Go to top

A06354 Memo NEW YORK STATE ASSEMBLY

MEMORANDUM IN SUPPORT OF LEGISLATION

submitted in accordance with Assembly Rule III Sec 1(f)

BILL NUMBER A6354B

TITLE OF BILL

An act to amend the real property law and the real property actions and

proceedings law in relation to prohibiting discrimination in housing

based upon domestic violence status and establishing a task force to

study the impact of source of income on access to housing

SUMMARY OF BILL

This bill would amend the Real Property Law to add a new Section 227-d

which would prohibit discrimination against domestic violence victim

status in housing A violation of this prohibition would be a misdemea-

nor This bill would also allow for a civil action for a violation of

the prohibition It would also add a new Section 744 to the Real Proper-

ty Actions and Proceedings Law to in a proceeding to recover possession

of a residential unit provide a defense that such proceeding is unlaw-

fully based on a persons domestic violence victim status An exemption

would exist under both of these sections for a building that is owner

occupied with two or fewer units This bill would also create a task

force to study the impact of source of income on access to housing

EXISTING LAW

This bill would added protections that are available under the Real

Property Law

STATEMENT IN SUPPORT

Discrimination against victims of domestic violence is almost always

discrimination against women Of all victims of domestic violence 85

are women an estimated 13 million women are victims of assault by an

intimate partner each year and about 1 in 4 women will experience inti-

mate partner violence in their lifetimes This bill would amend the Real

Property Law to protect victims of domestic violence from discrimination

when they attempt to rent or lease housing and provide victims of domes-

tic violence a defense in eviction proceedings

BUDGET IMPLICATIONS

This bill has no budget implications for the State

EFFECTIVE DATE

This bill would take effect 90 days after enactment

Go to top

A06354 Text

STATE OF NEW YORK

________________________________________________________________________

6354--B

Cal No 212

2015-2016 Regular Sessions

IN ASSEMBLY

March 20 2015

___________

Introduced by M of A PEOPLES-STOKES WEINSTEIN PAULIN

BICHOTTE

WEPRIN OTIS BRONSON WALKER FAHY GALEF ZEBROWSKI -- read once

referred to the Committee on Governmental Operations --

committee

discharged bill amended ordered reprinted as amended and

recommitted

to said committee -- reported and referred to the Committee on

-- advanced to a third reading passed by Assembly and delivered

the Senate recalled from the Senate vote reconsidered bill

amended

ordered reprinted retaining its place on the order of third

reading

AN ACT to amend the real property law and the real property actions

proceedings law in relation to prohibiting discrimination in

housing

based upon domestic violence status and establishing a task force

The People of the State of New York represented in Senate and

Assem-

bly do enact as follows

1 Section 1 The real property law is amended by adding a new

section

2 227-d to read as follows

3 sect 227-d Discrimination based on domestic violence status

prohibited

4 1 Definitions For the purposes of this section a person is a

domes-

5 tic violence victim and possesses domestic violence victim status

6 such person is or has been or is a parent accompanied by a minor

7 or children who is or has been in a situation in which such person

8 child is a victim of an act that would constitute a violent

felony

9 offense as enumerated in section 7002 of the penal law or a

family

10 offense as enumerated in subdivision one of section eight hundred

twelve

11 of the family court act and such act is alleged to have been

committed

12 by a member of the same family or household as defined in

subdivision

13 one of section eight hundred twelve of the family court act

14 2 Discrimination based on domestic violence victim status

prohibited

15 (a) No person firm or corporation owning or managing any building

16 for dwelling purposes or the agent of such person firm or

corporation

17 shall because of such persons or family members domestic

violence

EXPLANATION--Matter in italics (underscored) is new matter in

brackets

[ ] is old law to be omitted

LBD09563-

A 6354--B 2

1 victim status (1) refuse to rent a residential unit to any person

2 family when but for such status rental would not have been

refused

3 (2) discriminate in the terms conditions or privileges of any

4 rental when but for such status such discrimination would not

5 occurred or (3) print or circulate or cause to be printed or

circu-

6 lated any statement advertisement or publication which

expresses

7 directly or indirectly any limitation specification or

discrimi-

8 nation A violation of this subdivision shall be a misdemeanor and

9 conviction thereof shall be punished by a fine of not less than

10 thousand dollars and not more than two thousand dollars for

11 offense provided however that it shall be a defense that such

person

12 firm corporation or agent refused to rent a residential unit on

13 other lawful ground

14 (b) (1) Where discriminatory conduct prohibited by this

subdivision

15 has occurred such person or family shall have a cause of action in

16 court of appropriate jurisdiction for compensatory and punitive

damages

17 with such punitive damages not exceeding two thousand dollars for

18 offense and declaratory and injunctive relief and (2) in all

actions

19 brought under this section reasonable attorneys fees as determined

20 the court may be awarded to a prevailing party provided however

21 a prevailing defendant in order to recover such reasonable

attorneys

22 fees must make a motion requesting such fees and show that the action

23 proceeding brought was frivolous In order to find the action

24 proceeding to be frivolous the court must find one or more of

25 following (i) the action was commenced used or continued in bad

26 solely to delay or prolong the resolution of the litigation or to

harass

27 or maliciously injure another or (ii) the action was commenced

28 continued in bad faith without any reasonable basis and could not

29 supported by a good faith argument for an extension modification

30 reversal of existing law If the action or proceeding was

promptly

31 discontinued when the party or attorney learned or should have

learned

32 that the action or proceeding lacked such a reasonable basis the

33 may find that the party or the attorney did not act in bad faith

34 (c) Nothing in this section shall be construed as limiting the

ability

35 of a person firm or corporation owning or managing a building used

36 dwelling purposes or the agent of such person firm or

corporation

37 from applying reasonable standards not based on or derived from

domestic

38 violence victim status in determining the eligibility of a person

39 family seeking to rent a residential unit

40 (d) This section shall not apply to buildings used for

dwelling

41 purposes that are owner occupied and have two or fewer

residential

42 units

43 3 A person firm or corporation owning or managing a building

44 for dwelling purposes or agent of such person firm or corporation

45 not be civilly liable to other tenants guests invitees or

licensees

46 arising from reasonable and good faith efforts to comply with

47 section

48 4 Nothing in this section shall be construed as prohibiting a

person

49 firm or corporation owning or managing a building used for

dwelling

50 purposes or the agent of such person firm or corporation from

51 (a) providing or preserving a rental preference in any public

52 private housing for victims of domestic violence

53 (b) providing any other assistance to victims of domestic violence

54 obtaining or retaining any public or private housing or

55 (c) responding to an inquiry or request by an applicant tenant

56 leaseholder who is a victim of domestic violence

A 6354--B 3

munici-

2 pality from retaining or promulgating local laws or ordinances

imposing

3 additional or enhanced protections prohibiting discrimination

against

4 victims of domestic violence

5 6 Nothing in this section shall be construed as limiting

diminish-

6 ing or otherwise affecting any rights under existing law

7 sect 2 The real property actions and proceedings law is amended

8 adding a new section 744 to read as follows

9 sect 744 Eviction based on domestic violence victim status

prohibited

10 1 A tenant shall not be removed from possession of a residential

11 pursuant to this article because of such persons domestic

violence

12 victim status as defined in section two hundred twenty-seven-d of

13 real property law It shall be a defense to a proceeding to

recover

14 possession of a residential unit that a landlord seeks such

recovery

15 because of a persons domestic violence victim status and that but

16 such status the landlord would not seek to recover possession A

17 lord may rebut such defense by showing that he or she seeks to

recover

18 possession of a residential unit because of any other lawful ground

19 2 Nothing in this section shall restrict a landlords legal rights

20 recover possession of a residential unit on grounds not based on

21 derived from domestic violence victim status

22 3 A landlord shall not be civilly liable to other tenants

guests

23 invitees or licensees arising from reasonable and good faith efforts

24 comply with this section

25 4 This section shall not apply to buildings used for

dwelling

residential

27 units

28 sect 3 There is hereby established a task force to study the impact

29 source of income on access to housing including but not limited to

30 sex-based impact The task force shall consist of the following

members

31 as appointed by the governor (1) two members of the governors

cabinet

32 (2) two experts on housing policy representing the needs of both

33 lords and tenants (3) two members who are local government

officials

34 who shall each represent different geographical regions within

35 state (4) two members on the recommendation of the temporary

president

36 of the senate and (5) two members on the recommendation of the

speaker

37 of the assembly The governor shall designate a chair of the task

38 from amongst such appointees The task force shall meet as often as

39 appropriate under circumstances necessary to fulfill its duties

40 this section The task force shall (a) review the Section 8

Housing

41 Choice Voucher Administrative Plan and if necessary recommend

modifi-

42 cations to increase the participation of landlords and property

owners

43 which may include but shall not be limited to expanding the

portabil-

44 ity of Section 8 vouchers including as may be appropriate for

domestic

45 violence victims creating a state-sponsored special-purpose

mobility

46 counseling program enhancing means of connecting voucher holders

47 approved landlords and eliminating delays in housing quality

standard

48 inspections and (b) review other current policies and laws and

49 necessary recommend modifications to improve access to quality

50 affordable housing The task force shall submit its report and

recommen-

51 dations to the governor the temporary president of the senate and

52 speaker of the assembly on January 15 2016

53 sect 4 Severability clause If any clause sentence paragraph

subdivi-

54 sion section or part of this act shall be adjudged by a court of

compe-

55 tent jurisdiction to be invalid such judgment shall not affect

impair

56 or invalidate the remainder thereof but shall be confined in its

opera-

A 6354--B 4

1 tion to the clause sentence paragraph subdivision section or

2 thereof directly involved in the controversy in which such

judgment

3 shall have been rendered It is hereby declared to be the intent of

4 legislature that this act would have been enacted even if such

invalid

5 provisions had not been included herein

6 sect 5 This act shall take effect on the ninetieth day after it

7 have become a law

Go to top Request Information Contact Webmaster Directions and Maps

2017 NY Slip Op 27365

STEPHEN ALCORN ON BEHALF OF PROAS PARTNERS LLC CARLOS

ALVERIO JR and KARLA LUNA Petitioners-Plaintiffs

BAYEacute MUHAMMAD INDIVIDUALLY and AS COMMISSIONER OF

NEIGHBORHOOD and BUSINESS DEVELOPMENT FOR THE CITY OF

ROCHESTER NEW YORK Respondent-Defendant

201609424

Supreme Court Monroe County

Decided October 23 2017

Santiago Burger LLP By Michael A Burger Esq of Counsel 1250 Pittsford Victor Road

Bldg 100 Suite 190 Pittsford New York 14534 Appearing on behalf of the petitioners

Brian Curran Corporation Counsel By Patrick N Beath Esq of Counsel 400A City Hall

Rochester New York 14614 Appearing on behalf of respondent City of Rochester Law

Department

EVELYN FRAZEE J

Petitioners-plaintiffs (plaintiffs) commenced this hybrid Article 78 proceeding and declaratory

judgment action (action) seeking an order and judgment to (1) preliminarily enjoin and stay

enforcement of the July 27 2016 Final Determination (Final Determination) and Order (Order)

of the Commissioner of Neighborhood and Business Development for the City of Rochester

(Commissioner) issued by respondent-defendant (defendant or City) closing 299 Conkey Avenue

for a year and summarily evicting its occupants without a court order (2) vacate the Final

Determination and Order (3) declare Rochester City Charter section 3-15 (section 3-15) in

violation of the New York State and federal constitutions and laws including without limitation

42 USC sect 1983 and (4) for an award of reasonable attorneys fees and costs to plaintiffs as

prevailing parties under 42 USC sect 1988[1]

A temporary restraining order was issued enjoining

defendants from enforcing the Final Determination and Order pending further court order

Plaintiffs assert that the Final Determination was issued in excess of jurisdiction was in violation

of lawful procedure was affected by an error of law and was arbitrary and capricious or an

abuse of discretion Plaintiffs seek a declaration that section 3-15 is unconstitutional insofar as it

punishes property owners and tenants for the illegal acts of third parties over whom they have no

control and specifically prohibits as a defense that the property owner or lessors are innocent

that is that they lack knowledge of acquiescence or participation in or responsibility for a public

nuisance Plaintiffs also seek a declaration that section 3-15 illegally supersedes the Real

Property Actions and Proceeding Law as well as articles of New York State Penal Law and

federal laws to which section 3-15 refers

Defendants position is that section 3-15 is constitutional in all respects and does not improperly

supercede or conflict with other laws The City asserts that all procedural requirements for the

administrative abatement proceeding were followed and plaintiffs were afforded due process In

this regard defendant notes that the property owner tenants and mortgagee were properly

served with the Notice of Charges and given the opportunity to demand a hearing but only the

property owner requested a hearing Accordingly the City argues that the tenants were in default

and were not entitled to further notice after service of the Notice of Charges and lack standing to

bring this Article 78 proceeding It is the Citys position that the underlying proceeding was not

in excess of jurisdiction or affected by an error of law and that the determination was not

arbitrary and capricious or an abuse of discretion

BACKGROUND

In relevant part section 3-15 provides

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 or immediately adjacent to the building erection or

place as a result of the operation of the business 12 or more points are accumulated within a

period of six months or 18 or more points within a period of 12 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

(1) The following violations shall be assigned a point value of six points

(a) Article 220 of the Penal Law mdash Controlled Substance Offenses

(b) Article 221 of the Penal Law mdash Offenses involving Marihuana

(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

C Powers of the Mayor with respect to public nuisances

(1) In addition to the enforcement procedures established elsewhere the Mayor or the Mayors

designee 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

(2) Service of Notice

(a) Such notice shall be served upon an owner pursuant to Article 3 of the Civil Practice Law

and Rules or by means of first-class mail with delivery confirmation sent to the owners last

known address upon a lessee pursuant to sect735 of the Real Property Actions and Proceedings

Law and upon a mortgagee by means of first-class mail

(b) 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

(6) A closing directed by the Mayor or the Mayors designee pursuant to this section shall not

constitute an act of possession ownership or control by the City of the closed premises nor will

it constitute a closure caused by a government for purposes of nonconformity

(7) 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 Mayors designee

Section 3-15 (C)(9) empowers the Mayor or the Mayors designee to promulgate rules and

regulations to carry out and give full effect to the provisions of the ordinance Rule I provides

that the Notice of Charges shall state that respondents have ten days from the date of receipt of

said notice to demand a hearing and serve an answer on Corporation Counsel Rules II VII and

VIII require service of the Notice of Hearing Hearing Officers Report and Final Determination

and Order only upon those parties who demand a hearing and serve an answer Rule VIII states

that the Order of the Commissioner shall be posted at the building where the public nuisance

exists

Stephen Alcorn (Alcorn) acquired 299 Conkey Avenue (house or subject property or premises)

in 2009 and transferred ownership of the subject property to Proas Partners LLC (Proas) in

2015 Alcorn is a managing member of Proas The house is a three-family apartment building At

the time the City took action to close the house as a nuisance plaintiff Karla Luna (Luna) was a

tenant in Apartment No1 under a one-year renewable lease having moved into the apartment on

or about March 1 2016 Plaintiff Carlos Alverio Jr (Alverio) occupied Apartment 3 under a

one-year renewable lease starting on March 1 2015 and lived there when this proceeding was

commenced but according to the amended petition he has temporarily relocated to an

undisclosed location allegedly due to the publicity of this lawsuit and threats to his personal

safety

On or about March 4 2016 the City of Rochester served a Notice of Charges pursuant to section

3-15 declaring 299 Conkey Avenue a nuisance and commenced a nuisance abatement

proceeding against plaintiffs Proas unknown tenants in units 1 2 and 3 and the mortgagee

The Notice of Charges stated the property had over 18 nuisance points assessed against it

reciting various nuisance acts all involving the possession or finding of marijuana on the

property in violation of Penal Law Article 221 that occurred on six occasions to wit July 20

2015 December 2 2015 December 17 2015 January 13 2016 January 14 2016 and January

26 2016 A seventh charge was more general in nature and described the property as being

operated between April 8 2008 and the date of the Notice of Charges (March 4 2016) in such

a manner that it has become a focal point of police attention and a source of disruption in the

neighborhood The Notice of Charges also informed the recipients they were entitled to demand

a hearing and if they failed to demand a hearing or if the charges were sustained after a hearing

the Commissioner may find the property to be a public nuisance and order closing of the

building

Although all defendants were served with the Notice of Charges only the owner and landlord

Proas demanded a hearing A Notice of Hearing was served only upon the attorney for Proas

The hearing took place before a hearing officer an attorney retained and paid by the City who

issued a Final Report on or about June 6 2016 (Final Report) The Final Report concluded that

the subject property acquired an excess of nuisance points and recommended the property be

declared a public nuisance pursuant to section 3-15 Proas disagreed with the Final Report and

its attorney sent a letter requesting reconsideration upon the argument that an incorrect

conclusion had been reached Proas noted inter alia that none of the violations were committed

by its tenants or principal but rather by unknown third parties using the area and premises for

drug sales

Thereafter on July 27 2016 the Commissioner sent a Final Determination to Proas attorney

The Final Determination adopted the recommendations of the hearing officer upheld the

findings with regard to the charges made against the property and found that a public nuisance

as defined in section 3-15 existed at 299 Conkey Avenue The Commissioner ordered the

building closed for a period of 12 months and the Order was posted at the property The subject

action was then commenced

With regard to notice of the hearing and the conduct of the hearing the supporting affidavit of

plaintiff Luna avers that she had no advance warning of the eviction and that she did not have a

day in court or a chance to hear why she was being evicted from the apartment for crimes she did

not commit and to which she did not consent

The affidavit of plaintiff Alverio avers that he was a tenant at the premises and called the police

to report drug activity on or near the subject property He claims that as a result the premises

was declared a nuisance and he was forced to move out He denies giving anyone permission to

hide or use drugs around the house Alverio acknowledges receiving the Notice of Charges but

states that he did not receive a notice of hearing date from the City and only learned of it from

his landlord Alverio also states he never received a copy of the hearing officers Final Report

and only learned of the Commissioners decision when he was advised by a police officer that the

house was closed and he had to move immediately He states that an adjacent property 300

Conkey Avenue has been closed and boarded up and trespassing drug dealers arrested yet drug

sales still continue at that address

While not a party to this lawsuit Shameka Franklin (Franklin) a tenant in Apartment 2 under a

one-year renewable lease commencing on or about March 1 2016 submits an affidavit

explaining that the acts upon which the Final Determination and Order are based occurred before

she moved into the house She denies giving anyone permission to store drugs on the premises

Franklin avers that she did not receive the Notice of Charges or the Notice of Hearing nor did she

receive the hearing officers Final Report She also states that she did not learn of the Final

Determination and Order until the order was posted on August 8 2016 She asserts that the

officer told her she had to move out before August 27 2016 or possibly face jail

Testimony on behalf of plaintiffs was given at the hearing by Alcorn and Alverio Alcorn

testified that he does not condone the use of the subject property for drug-related activity He

indicated that he had worked with Officer Bryan Kehrig (Kehrig) regarding three other

properties he owns to evict tenants who were engaged in drug activity He stated that on one

occasion he evicted a tenant at the subject premises when he found out he was dealing drugs

from his apartment Alcorn further testified he has contacted the police and City personnel on

several occasions seeking their assistance to eliminate the drug activity by these unknown third

parties near and on his property He testified that he even gave the police a key to the house so

they could set up surveillance inside

Alverio testified he called 911 twice on April 22 2016 which was four days before the hearing

to report that his nine-year old daughter had found a bag of marijuana in the mailbox It was his

testimony that when he first called the 911 operator told him they were not going to respond

however after a second call an officer responded and took possession of the marijuana He stated

that the self-described owner of the marijuana came to his apartment demanding return of his

stash and threatened him He testified he has called 911 on numerous occasions but could only

recall the two occasions in April 2016

Plaintiffs include in their supporting papers the Nuisance Abatement Point System Evaluation

Final Report (Nuisance Abatement Report) dated July 25 2016 prepared by Strategic

Community Intervention Inc with which the City contracted to conduct a comprehensive

review and assessment of the nuisance abatement program authorized by section 3-15 for the

period January 1 2009-February 10 2016

Defendants supporting papers include the affirmation of counsel and the affidavit of Scott

Peters Counsel states in her affirmation that Rochester Police Department (RPD) Call for

Service Records indicate that Alcorn made one 911 call on January 26 2016 and Alverio placed

two 911 calls on February 22 2016 to report a bullet hole in his apartment window and two calls

on April 22 2016

In his affidavit Deputy Chief of Operations for RPD Scott Peters opines that based on his

training and experience the order to temporarily close the subject property is a reasonable and

effective means to abate chronic drug activity and that the penal laws have limited effectiveness

in abating street-level drug sales He further states that RPD has found closure pursuant to

section 3-15 to be a vital tool to abate chronic drug activity by creating an environment which is

hostile to the business of the illegal drug trade because the place of business is closed and

persons on the property are subject to arrest

A review of the hearing transcript indicates that four RPD police officers Enrique Gomez

(Gomez) Michael DeCocq (DeCocq) Kehrig and Eric Majewicz (Majewicz) testified at the

hearing on behalf of the City Gomez testified that he works with the Neighborhood Service

Center (NSC) Clinton Section Gomez described the subject property as having a reputation as a

nuisance due to open air drug activity He testified that during patrol on three occasions

December 17 2015 and January 13 and 14 2016 he observed a group of men congregated on

the corner near the subject premises disperse when they saw his car He testified that he observed

some of the men run onto the subject property to apparently hide items around the exterior of the

house He examined the house exterior on these three occasions and found marijuana stashed

under the porch in a garbage can and basement window well He testified he did not make any

arrests on these occasions He further testified that he did not know if anyone has been arrested at

the subject property He indicated he would absolutely tell a resident or owner to confront a drug

dealer in order to protect his property despite the potential danger in doing so Gomez also

testified that a resident or owner should call 911 to report illicit drug activity even though it

might result in closure of the property pursuant to section 3-15

DeCocq testified he also works with the NSC Clinton Section and identified 299 Conkey

Avenue as an address to which officers go on a regular basis due to recurring drug activity He

testified he has never arrested anyone at 299 Conkey Avenue It was DeCocqs testimony that it

is not RPD policy to advise citizens to confront drug dealers and he would not advise a person to

confront a dealer due to the risk He opined that a person should instead call 911 even if it

could lead to a section 3-15 closure DeCocq also testified that while marijuana has been found

along the fence line of the property adjoining the subject property which is owned by the City

no nuisance points have been assessed against that property In explaining why he did not make

an arrest on January 26 2016 after finding an individual in a car in the driveway of the subject

property with indicia of marijuana use DeCocq testified I dont need tomdashyou know I dont

need to follow up on that I find the violation there thats the six points on the property If I could

have locked the guy up I would have But in this case we couldnt (DeCocq TR 57)

Another NCS Clinton Section officer Kehrig testified in support of the seventh charge that on

March 3 2013 he saw via a surveillance camera people congregated at Avenue C and Conkey

Avenue who appeared to be hiding objects at the subject property He stated that he inspected the

subject premises and found crack cocaine and three dime bags of marijuana under the porch

Kehrig testified he has not made any drug related arrests at the property He confirmed Alcorns

testimony that a key to the house was provided to the police so they could enter the house to

monitor the area in an effort to control open air drug dealing in the vicinity He did not know if

RPD made use of this enforcement tool

In support of the seventh charge Majewicz testified that on March 7 2016 while serving papers

he smelled marijuana coming from under the door of one of the apartments in the house He also

indicated that the subject property is known for its drug activity Similar to the other officers he

testified he was not aware of any arrests for drug trafficking at the address he had no reason to

believe that the tenants in the house were dealing drugs on the property and there were no arrests

or prosecutions of any of the tenants All the officers also testified that Alcorn has never been

arrested or charged with any drug or other offenses Majewicz testified that while it is not RPDs

policy a property owner should confront drug dealers even if it is dangerous or call 911 despite

the fact that this could lead to closure under section 3-15 None of the officers indicated the

quantity of any of the drugs they found on the property

DISCUSSION

Section 3-15 established the City of Rochester Nuisance Abatement Program with the goal of

abating negative activities which threaten to undermine public safety health and welfare and the

quality of life It is part of an organized effort to improve neighborhoods particularly blighted

neighborhoods by engaging residents in identifying and resolving problems in their

neighborhoods in concert with police and code enforcement personnel (Nuisance Abatement

Report at 5) As an enforcement tool specific violations are identified as public nuisances and

assigned a point value Points are assessed against properties for the enumerated negative

activities The complaints for which points are accumulated and administrative abatement

proceedings can be initiated come from 911 calls from tenants or ownerlandlords and citizens

or reports by police officers If 12 points are accumulated within a contiguous six month period

or 18 points within a contiguous 12 months enforcement action can be taken The hearing record

indicates a significant number of the points in this case came from nuisance points requests made

by police officers

One of the enforcement tools is the closure of an offending property for up to a year The

opportunity for a hearing if requested is afforded to any party affected by a potential closure

including the property owner tenants and mortgagee The ordinance specifically provides that

lack of knowledge acquiescence or participation in or responsibility for the public nuisance are

not to be considered in reaching a final determination and order Further an arrest or conviction

for an enumerated public nuisance offense is not required to impose an enforcement action To

carry its burden of establishing a basis to close a property the City must show by a

preponderance of the evidence that nuisance activity totalling the requisite points has been found

at the premises It is not required to show that actual or even charged criminal activity occurred

at the site

While it is well-established that legislative enactments enjoy an `exceedingly strong

presumption of constitutionality that presumption is rebuttable (Matter of DAlessandro v

Kirkmire 125 AD3d 1309 1311 [4th Dept 2015] citing Lighthouse Shores v Town of Islip 41

NY2d 711 [1976]) It has also been established that a governmental authority may bring an

action to abate a public nuisance and that there is legislative authority to enact laws deeming

certain activities public nuisances (City of New York v Smokes-SpiritsCom Inc 12 NY3d 616

626-27 [2009]) However a municipal exercise of the police power which interferes with the

beneficial use of property must be a reasonable and legitimate response to a situation which it is

within the police power to correct What is an unreasonable exercise of the police power

depends on the relevant converging factors Hence the facts of each case must be evaluated in

order to determine the private and social balance of convenience before the exercise of the power

may be condemned as unreasonable (citations omitted) (Fred F French Inv Co v City of New

York 39 NY3d 587 596 [1976]) In the context of interference with the reasonable use of

property the Court of Appeals has stated that A police power regulation to be reasonable must

be kept within the limits of necessity To justify interference with the beneficial enjoyment of

property the municipality must establish that it has acted in response to a dire necessity that its

action is reasonably calculated to alleviate or prevent the crisis condition and that it is presently

taking steps to rectify the problem (citations omitted) (Matter of Charles v Diamond 41 NY2d

318 324 [1977]) The deprivation of a property right does not have to be permanent to be subject

to due process requirements (Connecticut v Doehr 501 US 1 2 [1991])

Fourteenth Amendment Analysis

While closure of the subject property is not a compensable taking as defined by the Fifth

Amendment it is nevertheless a deprivation and frustration of property rights (Fred F French

Inv Co v City of New York 39 NY2d at 593-94) Closure of the subject property renders the

property economically idle for a year depriving Alcorn of income from rent yet he remains

obligated to pay the mortgage and taxes Alcorns potential loss is compounded by section 3-

15(C)(6) which absolves the City of any responsibility for properties it closes Alcorn must

maintain a non-income producing vacant house that is subject to a heightened likelihood of

vandalism and theft of fixtures Closure also causes three tenants to lose their homes

Under such circumstances there is a fundamental right to due process that is an opportunity to

be heard `at a meaningful time and in a meaningful manner (Mathews v Eldridge 424 US 319

333 [1976]) The subject ordinance provides a right to a hearing prior to imposition of a closure

order and passes constitutional muster in this respect The precise issue presented is whether the

ordinance provides a hearing that is meaningful particularly when the owner and tenants are not

involved in do not condone and have no control over those perpetrating the alleged nuisance

conduct and their innocence cannot be asserted as a defense

Three factors are to be weighed when determining whether due process is satisfied (1) the

private interest affected (2) the risk of erroneous deprivation through the procedures used and

the probable value of other procedural safeguards and (3) the governments interest (County of

Nassau v Canavan 1 NY3d 134142 [2003] citing Mathews v Eldridge 424 US at 335) With

regard to the first factor the private interests that will be affected are Alcorns receipt of the

income from the property and the tenants interest in keeping their homes Further Alcorn also

has an interest in not having to maintain a vacant non-income producing property that is subject

to diminution in value due to possible vandalism These are long recognized fundamental

property rights (see US v James Daniel Good Real Property 510 US 43 53-54 [1993])

Next to be considered is the second factor which focuses on the risk of erroneous deprivation of

such interest through the procedure used and the probable value of additional or substitute

safeguards As previously noted all proceedings leading to closure of a property are

administrative with no judicial involvement at any stage of the closure process The risk of

erroneous deprivation is heightened by the lack of an innocent ownertenant defense (see

Krimstock v Kelly 306 F3d 40 57 [2d Cir 2002]) As a practical matter there is little a property

owner or tenant can challenge at the hearing Testimony sufficient to impose closure consists

merely of police officers reciting dates they were called to the property to establish that a

property has become a focal point of police attention or the dates the officers observed

purported criminal conduct even though no arrests were made or charges lodged against the

individuals claimed to be causing a public nuisance

Further the ordinance lacks any notice provisions to the owner in advance of service of the

Notice of Charges to provide an opportunity to work with authorities to try to further the goals of

section 3-15 (see eg Board of Trustees of Village of Groton v Pirro 58 NYS 3d 614 [3d Dept

2017] City of New York v 924 Columbus Assoc LP 219 AD2d 19 [1st Dept 1996]) Finally

the only notice required to be served on all affected individuals and entities is the Notice of

Charges If a hearing is not requested and an answer served no further notice is given to

individuals or entities who did not request a hearing Besides the Notice of Charges the only

notice provided to all affected individuals is the posting of the Commissioners Order on the

building in furtherance of closure With regard to tenants this is problematic because the

ordinance and rules and regulations promulgated thereunder are silent as to the time frame

between posting of the order and when tenants must vacate the premises The ordinance and the

rules and regulations promulgated thereunder are contrary to the requirements of Real Property

Actions and Proceedings Law Article 7 because they contain no provision for a time period

between posting of the Order of the Commissioner and when tenants must move Further the

ordinance does not address or comply with the enumerated grounds (RPAPL sectsect 711[1] 711[2]

711[5] 713 715) or procedural requirements (RPAPL sect 701) for eviction These deficiencies

increase the risk of erroneous deprivation The practical effect of the ordinance when tenants are

present is to preempt state law requirements for eviction

Finally the third factor to consider is the municipalitys interest The stated purpose of the

ordinance is to increase citizen participation and investment in their neighborhoods and to

encourage cooperation with police and code enforcement officials to promote public safety

health and welfare and the quality of life The accumulation of nuisance points based upon calls

to 911 by owners and tenants however can undermine this purpose The only recourse when a

property is subject to trespassing drug dealers is to confront the drug dealer who may be

physically aggressive or to call 911 and risk the assessment of points against the property which

can lead to closure Thus the ordinance may actually discourage owners and tenants from

reporting illegal activity

Moreover the City has not established that closing the property of an innocent owner and

dispossessing tenants is a reasonable method to reduce criminal activity and improve a

neighborhood It is the Citys contention that if the house is vacant and boarded and a sign posted

warning people to stay away or face arrest this will cause the drug dealers to move someplace

else and the neighborhood will be improved Alverio testified however that he continues to

observe drug activity at a neighboring property that was closed pursuant to section 3-15 A

vacant property is subject to vandalism and likely to become an eyesore contrary to the intended

goal of the ordinance to improve the quality of neighborhoods

Rather than prosecute the individuals who are alleged to be violating the law the City seeks to

eradicate the drug problem by closing the house of an innocent property owner who has no

control over the people violating the law Here Alcorn contacted the police for help eradicating

drug dealers hanging out on the corner near his property who used his property without

permission and even gave the police a key to conduct surveillance from the house It appears

that the police did not avail themselves of this enforcement opportunity Neither could the police

witnesses recall making any drug-related arrests of the people who are open air dealing near the

property The practical effect of the ordinance is that it encourages the police to become reactive

rather than proactive There is no incentive for the police to arrest and seek prosecution of the

individuals violating the law when they can merely report that they went to the property found

drugs assess points against the property and then close it with the hope that the dealers move to

another location This very approach was revealed by the testimony of one of the officers I

dont need tomdashyou know I dont need to follow up on that I find the violation there thats the

six points on the property If I could have locked the guy up I would have But in this case we

couldnt (DeCocq TR 57) This is not a municipality interest or approach that should be

condoned or encouraged

Closing the property for a year does not advance a legitimate governmental interest particularly

when as here it is being enforced against an innocent owner and tenants Stated differently the

municipalitys interest does not outweigh the innocent owners interest in the economic use of his

property and the tenants interest in maintaining their homes

Defendant argues that the ordinance is constitutional under a line of cases involving the

forfeiture of property used during the course of illegal activity even if a co-owner of the

forfeited property is innocent of any offense (see eg Bennis v Michigan 516 US 442 [1996]

People ex rel Lemon v Elmore 256 NY 489 [1931] City of New York v Partnership 91 LP

227 AD2d 164 [1st Dept 2000] New York v Castro 160 AD2d 651 [1st Dept 1990]) The

common thread in the cases cited by defendant in support of the ordinance is the existence of an

underlying pending charge or actual finding of criminal activity against the owner or someone

over whom the property owner had control or the innocent party knew of the owners propensity

for the criminal conduct that led to forfeiture (eg Bennis v Michigan mdash car forfeited after co-

owner convicted of a criminal offense People ex rel Lemon v Elmore mdash building closed

because judgment was rendered against the property owner for operating a house of prostitution

City of New York v Partnership 91 mdash judicial closure of property used for gambling New York v

Castro mdash judge enjoined use of first floor of building where illegal gambling occurred) In

contrast Alcorn has no control over the drug dealers at the corner of his property Even the

police are unsure as to the identity of the offenders This is not a situation where the drugs sales

were conducted by tenants such that the owner could be presumed to have knowledge and the

opportunity to address the situation by eviction (City of New York v Castro 143 Misc 2d 766

768 [Sup Ct New York County 1989] citing Pennoyer v Neff 95 US 714 [1877]) or where the

owner was involved in the illegal activity

The analysis of the aforementioned three factors in the factual context of this case where the

owner and tenants are not involved in the activity sought to be abated and have no control over

the offending parties leads to the conclusion that plaintiffs were not afforded due process

Further because there is no intentional wrongdoing no departure from a prescribed standard of

conduct and no reckless conduct closure under these circumstances is so arbitrary and

oppressive as to be a taking without due process of law in violation of the Fourteenth

Amendment of the United States Constitution and Article I Section 6 of the New York State

Constitution

Fourth Amendment Analysis

The ordinance as applied in this case also violates the Fourth Amendment of the United States

Constitution and Article I Section 12 of the New York State Constitution The Fourth

Amendment does not apply just to seizure where criminal conduct has alleged to have occurred

A `seizure of property occurs when `there is some meaningful interference with an

individuals possessory interest in that property The Fourth `Amendments protection applies

in the civil context (citations omitted) (Santana v City of Tulsa 359 F3d 1241 1244 [10th Cir

2004]) As previously stated both Alcorn and the tenants are being deprived of their respective

interests in the property for a year under the closure They were not afforded due process Nor

can the lack of process be excused or characterized as reasonable under the exceptions for

exigent circumstances a deprivation incident to an arrest or the plain view doctrine (see US v

Lasanta 978 F2d 1300 1305 [2d Cir 1992]) There was no emergency that obviated following

judicial process no arrests have been made at the property and while drugs may have been dealt

and hidden in plain view the property owner and tenant had no part in that activity Here a

hearing before an attorney contracted and paid by the City supplanted judicial process A

legislative body cannot eliminate the judiciarys role in the task of constitutional construction

(see US v Lasanta 978 F2d at 1304-05)

Eighth Amendment Analysis

Ostensibly the intention of the subject ordinance is not to punish property owners or tenants for

a crime or for creating or allowing the existence of a public nuisance but rather seeks to abate

public nuisances to achieve improved neighborhoods A close examination of the abatement

program in this instance however leads to the conclusion that it is a punishment or fine and not

merely an incentive (see Matter of DAlessandro v Kirkmire 125 AD3d 1309 [4th Dept 2015])

Inexplicably plaintiffs are being deprived of income and their homes and potentially will sustain

other losses when they have no control over the public nuisance sought to be eradicated The

closure is in essence a punishment or fine that is without regard for the lack of participation by

plaintiffs in the public nuisance and wholly disproportionate to the evil sought to be eradicated

Closure can occur for example with only two incidents involving a purported violation of

Article 221 marijuana offense within a six month period In this case the purported violation of

Article 221 is based upon the acts of individuals who were not charged or arrested for an Article

221 violation and over whom petitioners have no control It is worthy of note that if the offenders

had been charged and convicted under Article 221 the offense could be only a violation with a

fine as low as $100 (Penal Law sect 22105) It is disproportionate for an innocent homeowner to be

faced with the loss of significant income and burdened with maintaining a closed property and

tenants subjected to the loss of their homes when the wrongdoing individual is not charged and

in any event might be committing a low-level offense which carries a minimal fine As such the

application of the ordinance and resultant order of closure for one year in this case is an

excessive fine in violation of the Eight Amendment of the United States Constitution and Article

I Section 5 of the New York State Constitution (see US v Bajakajian 524 US 321 [1998] see

also US v Collado 327-343 348 F3d 323 328 [2nd Cir 2013])

First Amendment Analysis

Plaintiffs contend that the ordinance has a chilling effect on their freedom of speech specifically

the right to petition the government for redress They argue that calls to 911 or other outreach to

the police and governmental entities seeking help to address illegal activity near or upon the

property could result in points being assessed against the property which can lead to closure

This they argue is a disincentive to reporting criminal activity and seeking the assistance of the

authorities contrary to the guarantees of the First Amendment While this could be a result of the

ordinance there is no evidence that plaintiffs were so affected Indeed the hearing testimony on

behalf of the City focused solely upon activities that the police observed and the overwhelming

source of points accumulated against the property came from police reports with only three 911

calls being attributed to plaintiffs Accordingly plaintiffs have failed to establish that their First

Amendment rights have been abrogated

42 USC sect 1983 Analysis

Plaintiffs also allege constitutional claims under 42 USC sect 1983 stating that the ordinance is

unlawful Section 1983 provides a procedural redress for the deprivation of rights established

elsewhere but does not create any substantive rights To state a section 1983 claim it must be

alleged that there has been a deprivation of rights privileges or immunities secured by the

Constitution and its laws by a person acting under the color of state law (Ferreira v Town of East

Hampton 56 F Supp 3d 211 222 [2014]) As discussed plaintiffs have established that the City

enacted an ordinance that as applied to them has violated their constitutional rights in several

ways (see Brancato v City of New York 244 F Supp 2d 239 [SDNY 2003]) In its discretion the

Court awards plaintiffs reasonable attorneys fees as part of the costs under 42 USC sect 1988 The

fees will be set upon submission on notice of an affirmation or affidavit of services

CONCLUSION

In conclusion section 3-15 is declared to be unconstitutional as to innocent parties such as

plaintiffs herein in that it violates due process as guaranteed by the Fourteenth Amendment of

the United States Constitution and Article I Section 6 of the New York State Constitution the

Fourth Amendment of the United States Constitution and Article I Section 12 of the New York

State Constitution and the Eighth Amendment of the United States Constitution and Article I

Section 5 of the New York State Constitution These violations also constitute a deprivation of

plaintiffs rights under 42 USC sect 1983 and entitles them to an award of attorneys fees under 42

USC sect 1988 to be assessed by the Court upon affidavit Further where tenants reside in property

subject to closure the notice provisions set forth in section 3-15 and the rules and regulations

promulgated thereunder are not consistent with provisions of RPAPL Article 7 and

impermissibly preempt state law

Accordingly the Final Determination and Order are vacated and plaintiffs are entitled to a

permanent stay of enforcement of the Final Determination and Order Plaintiffs are directed to

submit an order and judgment hereon and an affidavit setting forth the services rendered in

support of attorneys fees which the Court will set by separate order

[1] Plaintiffs have withdrawn any claims against defendant Commissioner in his individual capacity with a

reservation of rights should they experience economic damages as a result of his actions

sect 16058 Conditional sealing of certain controlled NY CRIM PRO sect 16058

copy 2018 Thomson Reuters No claim to original US Government Works 1

McKinneys Consolidated Laws of New York AnnotatedCriminal Procedure Law (Refs amp Annos)

Chapter 11-a Of the Consolidated Laws (Refs amp Annos)Part Two The Principal Proceedings

Title H Preliminary Proceedings in Local Criminal CourtArticle 160 Fingerprinting and Photographing of Defendant After Arrest--Criminal IdentificationRecords and Statistics (Refs amp Annos)

McKinneys CPL sect 16058

sect 16058 Conditional sealing of certain controlled substance marihuana or specified offense convictions

Effective June 6 2009Currentness

1 A defendant convicted of any offense defined in article two hundred twenty or two hundred twenty-one of the penallaw or a specified offense defined in subdivision five of section 41091 of this chapter who has successfully completed ajudicial diversion program under article two hundred sixteen of this chapter or one of the programs heretofore knownas drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar durationrequirements and level of supervision and has completed the sentence imposed for the offense or offenses is eligible tohave such offense or offenses sealed pursuant to this section

2 The court that sentenced the defendant to a judicially sanctioned drug treatment program may on its own motion or onthe defendants motion order that all official records and papers relating to the arrest prosecution and conviction whichresulted in the defendants participation in the judicially sanctioned drug treatment program be conditionally sealed Insuch case the court may also conditionally seal the arrest prosecution and conviction records for no more than threeof the defendants prior eligible misdemeanors which for purposes of this subdivision shall be limited to misdemeanoroffenses defined in article two hundred twenty or two hundred twenty-one of the penal law The court may only seal therecords of the defendants arrests prosecutions and convictions when

(a) the sentencing court has requested and received from the division of criminal justice services or the Federal Bureauof Investigation a fingerprint based criminal history record of the defendant including any sealed or suppressedinformation The division of criminal justice services shall also include a criminal history report if any from the FederalBureau of Investigation regarding any criminal history information that occurred in other jurisdictions The division ishereby authorized to receive such information from the Federal Bureau of Investigation for this purpose The partiesshall be permitted to examine these records

(b) the defendant or court has identified the misdemeanor conviction or convictions for which relief may be granted

(c) the court has received documentation that the sentences imposed on the eligible misdemeanor convictions have beencompleted or if no such documentation is reasonably available a sworn affidavit that the sentences imposed on theprior misdemeanors have been completed and

(d) the court has notified the district attorney of each jurisdiction in which the defendant has been convicted of an offensewith respect to which sealing is sought and the court or courts of record for such offenses that the court is consideringsealing the records of the defendants eligible misdemeanor convictions Both the district attorney and the court shall begiven a reasonable opportunity which shall not be less than thirty days in which to comment and submit materials toaid the court in making such a determination

3 At the request of the defendant or the district attorney of a county in which the defendant committed a crime that is thesubject of the sealing application the court may conduct a hearing to consider and review any relevant evidence offeredby either party that would aid the court in its decision whether to seal the records of the defendants arrests prosecutionsand convictions In making such a determination the court shall consider any relevant factors including but not limitedto (i) the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions (ii) thecharacter of the defendant including his or her completion of the judicially sanctioned treatment program as describedin subdivision one of this section (iii) the defendants criminal history and (iv) the impact of sealing the defendantsrecords upon his or her rehabilitation and his or her successful and productive reentry and reintegration into societyand on public safety

4 When a court orders sealing pursuant to this section all official records and papers relating to the arrests prosecutionsand convictions including all duplicates and copies thereof on file with the division of criminal justice services or anycourt shall be sealed and not made available to any person or public or private agency provided however the divisionshall retain any fingerprints palmprints and photographs or digital images of the same

5 When the court orders sealing pursuant to this section the clerk of such court shall immediately notify thecommissioner of the division of criminal justice services and any court that sentenced the defendant for an offense whichhas been conditionally sealed regarding the records that shall be sealed pursuant to this section

6 Records sealed pursuant to this subdivision shall be made available to

(a) the defendant or the defendants designated agent

(b) qualified agencies as defined in subdivision nine of section eight hundred thirty-five of the executive law and federaland state law enforcement agencies when acting within the scope of their law enforcement duties or

(c) any state or local officer or agency with responsibility for the issuance of licenses to possess guns when the personhas made application for such a license or

(d) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-threeand thirty-four of section 120 of this chapter in relation to an application for employment as a police officer or peaceofficer provided however that every person who is an applicant for the position of police officer or peace officer shall befurnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanationthereto

7 The court shall not seal the defendants record pursuant to this section while any charged offense is pending

8 If subsequent to the sealing of records pursuant to this subdivision the person who is the subject of such records isarrested for or formally charged with any misdemeanor or felony offense such records shall be unsealed immediatelyand remain unsealed provided however that if such new misdemeanor or felony arrest results in a termination in favorof the accused as defined in subdivision three of section 16050 of this article or by conviction for a non criminal offenseas described in section 16055 of this article such unsealed records shall be conditionally sealed pursuant to this section

Credits(Added L2009 c 56 pt AAA sect 3 eff June 6 2009)

McKinneys CPL sect 16058 NY CRIM PRO sect 16058Current through L2018 chapters 1 to 72

End of Document copy 2018 Thomson Reuters No claim to original US Government Works

sect 16059 Sealing of certain convictions NY CRIM PRO sect 16059

sect 16059 Sealing of certain convictions

Effective October 7 2017Currentness

1 Definitions As used in this section the following terms shall have the following meanings

(a) ldquoEligible offenserdquo shall mean any crime defined in the laws of this state other than a sex offense defined in article onehundred thirty of the penal law an offense defined in article two hundred sixty-three of the penal law a felony offensedefined in article one hundred twenty-five of the penal law a violent felony offense defined in section 7002 of the penallaw a class A felony offense defined in the penal law a felony offense defined in article one hundred five of the penallaw where the underlying offense is not an eligible offense an attempt to commit an offense that is not an eligible offenseif the attempt is a felony or an offense for which registration as a sex offender is required pursuant to article six-C ofthe correction law For the purposes of this section where the defendant is convicted of more than one eligible offensecommitted as part of the same criminal transaction as defined in subdivision two of section 4010 of this chapter thoseoffenses shall be considered one eligible offense

(b) ldquoSentencing judgerdquo shall mean the judge who pronounced sentence upon the conviction under consideration or ifthat judge is no longer sitting in a court in the jurisdiction in which the conviction was obtained any other judge who issitting in the criminal court where the judgment of conviction was entered

1-a The chief administrator of the courts shall pursuant to section 1040 of this chapter prescribe a form applicationwhich may be used by a defendant to apply for sealing pursuant to this section Such form application shall include allthe essential elements required by this section to be included in an application for sealing Nothing in this subdivisionshall be read to require a defendant to use such form application to apply for sealing

2 (a) A defendant who has been convicted of up to two eligible offenses but not more than one felony offense mayapply to the court in which he or she was convicted of the most serious offense to have such conviction or convictionssealed If all offenses are offenses with the same classification the application shall be made to the court in which thedefendant was last convicted

(b) An application shall contain (i) a copy of a certificate of disposition or other similar documentation for any offensefor which the defendant has been convicted or an explanation of why such certificate or other documentation is notavailable (ii) a sworn statement of the defendant as to whether he or she has filed or then intends to file any application

for sealing of any other eligible offense (iii) a copy of any other such application that has been filed (iv) a sworn statementas to the conviction or convictions for which relief is being sought and (v) a sworn statement of the reason or reasonswhy the court should in its discretion grant such sealing along with any supporting documentation

(c) A copy of any application for such sealing shall be served upon the district attorney of the county in which theconviction or if more than one the convictions was or were obtained The district attorney shall notify the court withinforty-five days if he or she objects to the application for sealing

(d) When such application is filed with the court it shall be assigned to the sentencing judge unless more than oneapplication is filed in which case the application shall be assigned to the county court or the supreme court of the county inwhich the criminal court is located who shall request and receive from the division of criminal justice services a fingerprintbased criminal history record of the defendant including any sealed or suppressed records The division of criminaljustice services also shall include a criminal history report if any from the federal bureau of investigation regardingany criminal history information that occurred in other jurisdictions The division is hereby authorized to receive suchinformation from the federal bureau of investigation for this purpose and to make such information available to thecourt which may make this information available to the district attorney and the defendant

3 The sentencing judge or county or supreme court shall summarily deny the defendants application when

(a) the defendant is required to register as a sex offender pursuant to article six-C of the correction law or

(b) the defendant has previously obtained sealing of the maximum number of convictions allowable under section 16058of the criminal procedure law or

(c) the defendant has previously obtained sealing of the maximum number of convictions allowable under subdivisionfour of this section or

(d) the time period specified in subdivision five of this section has not yet been satisfied or

(e) the defendant has an undisposed arrest or charge pending or

(f) the defendant was convicted of any crime after the date of the entry of judgement of the last conviction for whichsealing is sought or

(g) the defendant has failed to provide the court with the required sworn statement of the reasons why the court shouldgrant the relief requested or

(h) the defendant has been convicted of two or more felonies or more than two crimes

4 Provided that the application is not summarily denied for the reasons set forth in subdivision three of this section adefendant who stands convicted of up to two eligible offenses may obtain sealing of no more than two eligible offensesbut not more than one felony offense

5 Any eligible offense may be sealed only after at least ten years have passed since the imposition of the sentence onthe defendants latest conviction or if the defendant was sentenced to a period of incarceration including a period ofincarceration imposed in conjunction with a sentence of probation the defendants latest release from incarcerationIn calculating the ten year period under this subdivision any period of time the defendant spent incarcerated after theconviction for which the application for sealing is sought shall be excluded and such ten year period shall be extendedby a period or periods equal to the time served under such incarceration

6 Upon determining that the application is not subject to mandatory denial pursuant to subdivision three of this sectionand that the application is opposed by the district attorney the sentencing judge or county or supreme court shall conducta hearing on the application in order to consider any evidence offered by either party that would aid the sentencing judgein his or her decision whether to seal the records of the defendants convictions No hearing is required if the districtattorney does not oppose the application

7 In considering any such application the sentencing judge or county or supreme court shall consider any relevantfactors including but not limited to

(a) the amount of time that has elapsed since the defendants last conviction

(b) the circumstances and seriousness of the offense for which the defendant is seeking relief including whether the arrestcharge was not an eligible offense

(c) the circumstances and seriousness of any other offenses for which the defendant stands convicted

(d) the character of the defendant including any measures that the defendant has taken toward rehabilitation suchas participating in treatment programs work or schooling and participating in community service or other volunteerprograms

(e) any statements made by the victim of the offense for which the defendant is seeking relief

(f) the impact of sealing the defendants record upon his or her rehabilitation and upon his or her successful andproductive reentry and reintegration into society and

(g) the impact of sealing the defendants record on public safety and upon the publics confidence in and respect for thelaw

8 When a sentencing judge or county or supreme court orders sealing pursuant to this section all official records andpapers relating to the arrests prosecutions and convictions including all duplicates and copies thereof on file with the

division of criminal justice services or any court shall be sealed and not made available to any person or public or privateagency except as provided for in subdivision nine of this section provided however the division shall retain any finger-prints palmprints and photographs or digital images of the same The clerk of such court shall immediately notify thecommissioner of the division of criminal justice services regarding the records that shall be sealed pursuant to this sectionThe clerk also shall notify any court in which the defendant has stated pursuant to paragraph (b) of subdivision two ofthis section that he or she has filed or intends to file an application for sealing of any other eligible offense

9 Records sealed pursuant to this section shall be made available to

(d) any prospective employer of a police officer or peace officer as those terms are defined in subdivisions thirty-threeand thirty-four of section 120 of this chapter in relation to an application for employment as a police officer or peaceofficer provided however that every person who is an applicant for the position of police officer or peace officer shall befurnished with a copy of all records obtained under this paragraph and afforded an opportunity to make an explanationthere-to or

(e) the criminal justice information services division of the federal bureau of investigation for the purposes of respondingto queries to the national instant criminal background check system regarding attempts to purchase or otherwise takepossession of firearms as defined in 18 USC 921 (a) (3)

10 A conviction which is sealed pursuant to this section is included within the definition of a conviction for the purposesof any criminal proceeding in which the fact of a prior conviction would enhance a penalty or is an element of the offensecharged

11 No defendant shall be required or permitted to waive eligibility for sealing pursuant to this section as part of a pleaof guilty sentence or any agreement related to a conviction for an eligible offense and any such waiver shall be deemedvoid and wholly unenforceable

Credits(Added L2017 c 59 pt WWW sect 48 eff Oct 7 2017 Amended L2017 c 60 sectsect 4 5 eff Oct 7 2017)

sect 16055 Order upon termination of criminal action by NY CRIM PRO sect 16055

sect 16055 Order upon termination of criminal action by convictionfor noncriminal offense entry of waiver administrative findings

Effective November 20 2015Currentness

1 Upon the termination of a criminal action or proceeding against a person by the conviction of such person of atraffic infraction or a violation other than a violation of loitering as described in paragraph (d) or (e) of subdivisionone of section 16010 of this chapter or the violation of operating a motor vehicle while ability impaired as describedin subdivision one of section eleven hundred ninety-two of the vehicle and traffic law unless the district attorney uponmotion with not less than five days notice to such person or his or her attorney demonstrates to the satisfaction of thecourt that the interests of justice require otherwise or the court on its own motion with not less than five days noticeto such person or his or her attorney determines that the interests of justice require otherwise and states the reasons forsuch determination on the record the clerk of the court wherein such criminal action or proceeding was terminated shallimmediately notify the commissioner of the division of criminal justice services and the heads of all appropriate policedepartments and other law enforcement agencies that the action has been terminated by such conviction Upon receiptof notification of such termination

(a) every photograph of such person and photographic plate or proof and all palmprints and fingerprints taken ormade of such person pursuant to the provisions of this article in regard to the action or proceeding terminated andall duplicates and copies thereof except a digital fingerprint image where authorized pursuant to paragraph (e) of thissubdivision except for the palmprints and fingerprints concerning a disposition of harassment in the second degree asdefined in section 24026 of the penal law committed against a member of the same family or household as the defendantas defined in subdivision one of section 53011 of this chapter and determined pursuant to subdivision eight-a of section17010 of this title shall forthwith be at the discretion of the recipient agency either destroyed or returned to suchperson or to the attorney who represented such person at the time of the termination of the action or proceeding atthe address given by such person or attorney during the action or proceeding by the division of criminal justice servicesand by any police department or law enforcement agency having any such photograph photographic plate or proofpalmprints or fingerprints in its possession or under its control

(b) any police department or law enforcement agency including the division of criminal justice services whichtransmitted or otherwise forwarded to any agency of the United States or of any other state or of any other jurisdictionoutside the state of New York copies of any such photographs photographic plates or proofs palmprints andfingerprints shall forthwith formally request in writing that all such copies be destroyed or returned to the policedepartment or law enforcement agency which transmitted or forwarded them and upon such return such departmentor agency shall at its discretion either destroy or return them as provided herein

(c) all official records and papers relating to the arrest or prosecution including all duplicates and copies thereof on filewith the division of criminal justice services police agency or prosecutors office shall be sealed and not made availableto any person or public or private agency

(d) the records referred to in paragraph (c) of this subdivision shall be made available to the person accused or to suchpersons designated agent and shall be made available to (i) a prosecutor in any proceeding in which the accused hasmoved for an order pursuant to section 17056 or 21046 of this chapter or (ii) a law enforcement agency upon exparte motion in any superior court or in any district court city court or the criminal court of the city of New Yorkprovided that such court sealed the record if such agency demonstrates to the satisfaction of the court that justicerequires that such records be made available to it or (iii) any state or local officer or agency with responsibility for theissuance of licenses to possess guns when the accused has made application for such a license or (iv) the New Yorkstate department of corrections and community supervision when the accused is under parole supervision as a result ofconditional release or parole release granted by the New York state board of parole and the arrest which is the subjectof the inquiry is one which occurred while the accused was under such supervision or (v) the probation departmentresponsible for supervision of the accused when the arrest which is the subject of the inquiry is one which occurred whilethe accused was under such supervision or (vi) a police agency probation department sheriffs office district attorneysoffice department of correction of any municipality and parole department for law enforcement purposes upon arrestin instances in which the individual stands convicted of harassment in the second degree as defined in section 24026 ofthe penal law committed against a member of the same family or household as the defendant as defined in subdivisionone of section 53011 of this chapter and determined pursuant to subdivision eight-a of section 17010 of this title and

(e) where fingerprints subject to the provisions of this section have been received by the division of criminal justice servicesand have been filed by the division as digital images such images may be retained provided that a fingerprint card ofthe individual is on file with the division which was not sealed pursuant to this section or section 16050 of this article

2 A report of the termination of the action or proceeding by conviction of a traffic violation or a violation other than aviolation of loitering as described in paragraph (d) or (e) of subdivision one of section 16010 of this title or the violationof operating a motor vehicle while ability impaired as described in subdivision one of section eleven hundred ninety-twoof the vehicle and traffic law shall be sufficient notice of sealing to the commissioner of the division of criminal justiceservices unless the report also indicates that the court directed that the record not be sealed in the interests of justiceWhere the court has determined pursuant to subdivision one of this section that sealing is not in the interests of justicethe clerk of the court shall include notification of that determination in any report to such division of the disposition ofthe action or proceeding When the defendant has been found guilty of a violation of harassment in the second degreeand it was determined pursuant to subdivision eight-a of section 17010 of this title that such violation was committedagainst a member of the same family or household as the defendant the clerk of the court shall include notification ofthat determination in any report to such division of the disposition of the action or proceeding for purposes of paragraph(a) and subparagraph (vi) of paragraph (d) of subdivision one of this section

3 A person against whom a criminal action or proceeding was terminated by such persons conviction of a trafficinfraction or violation other than a violation of loitering as described in paragraph (d) or (e) of subdivision one of section16010 of this chapter or the violation of operating a motor vehicle while ability impaired as described in subdivisionone of section eleven hundred ninety-two of the vehicle and traffic law prior to the effective date of this section mayupon motion apply to the court in which such termination occurred upon not less than twenty days notice to the districtattorney for an order granting to such person the relief set forth in subdivision one of this section and such order shall

be granted unless the district attorney demonstrates to the satisfaction of the court that the interests of justice requireotherwise

4 This section shall not apply to an action terminated in a manner described in paragraph (k) of subdivision two ofsection 16050 of this chapter

5 (a) When a criminal action or proceeding is terminated against a person by the entry of a waiver of a hearing pursuantto paragraph (c) of subdivision ten of section eleven hundred ninety-two of the vehicle and traffic law or section forty-nine-b of the navigation law the record of the criminal action shall be sealed in accordance with this subdivision Uponthe entry of such waiver the court or the clerk of the court shall immediately notify the commissioner of the division ofcriminal justice services and the heads of all appropriate police departments and other law enforcement agencies that awaiver has been entered and that the record of the action shall be sealed when the person reaches the age of twenty-one orthree years from the date of commission of the offense whichever is the greater period of time At the expiration of suchperiod the commissioner of the division of criminal justice services and the heads of all appropriate police departmentsand other law enforcement agencies shall take the actions required by paragraphs (a) (b) and (c) of subdivision one ofsection 16050 of this article

(b) Where a person under the age of twenty-one is referred by the police to the department of motor vehicles for actionpursuant to section eleven hundred ninety-two-a or eleven hundred ninety-four-a of the vehicle and traffic law or sectionforty-nine-b of the navigation law and a finding in favor of the motorist or operator is rendered the commissioner of thedepartment of motor vehicles shall as soon as practicable but not later than three years from the date of commissionof the offense or when such person reaches the age of twenty-one whichever is the greater period of time notify thecommissioner of the division of criminal justice services and the heads of all appropriate police departments and otherlaw enforcement agencies that such finding in favor of the motorist or operator was rendered Upon receipt of suchnotification the commissioner of the division of criminal justice services and the heads of such police departments andother law enforcement agencies shall take the actions required by paragraphs (a) (b) and (c) of subdivision one of section16050 of this article

(c) Where a person under the age of twenty-one is referred by the police to the department of motor vehicles for actionpursuant to section eleven hundred ninety-two-a or eleven hundred ninety-four-a of the vehicle and traffic law or sectionforty-nine-b of the navigation law and no notification is received by the commissioner of the division of criminal justiceservices and the heads of all appropriate police departments and other law enforcement agencies pursuant to paragraph(b) of this subdivision such commissioner of the division of criminal justice services and such heads of police departmentsand other law enforcement agencies shall after three years from the date of commission of the offense or when the personreaches the age of twenty-one whichever is the greater period of time take the actions required by paragraphs (a) (b)and (c) of subdivision one of section 16050 of this article

Credits(Added L1980 c 192 sect 1 Amended L1981 c 249 sectsect 1 2 L1982 c 174 sect 1 L1986 c 294 sect 2 L1991 c 142 sectsect 4 5L1992 c 249 sect 1 L1994 c 169 sect 81 L1996 c 196 sectsect 22 23 L1998 c 391 sect 6 eff April 1 1999 L2009 c 476 sectsect7 8 10 eff Jan 14 2010 L2011 c 62 pt C subpt B sect 74 eff March 31 2011 L2015 c 449 sect 2 eff Nov 20 2015)

sect 16050 Order upon termination of criminal action in favor NY CRIM PRO sect 16050

sect 16050 Order upon termination of criminal action in favor of the accused

1 Upon the termination of a criminal action or proceeding against a person in favor of such person as defined insubdivision three of this section unless the district attorney upon motion with not less than five days notice to suchperson or his or her attorney demonstrates to the satisfaction of the court that the interests of justice require otherwiseor the court on its own motion with not less than five days notice to such person or his or her attorney determines thatthe interests of justice require otherwise and states the reasons for such determination on the record the record of suchaction or proceeding shall be sealed and the clerk of the court wherein such criminal action or proceeding was terminatedshall immediately notify the commissioner of the division of criminal justice services and the heads of all appropriatepolice departments and other law enforcement agencies that the action has been terminated in favor of the accused andunless the court has directed otherwise that the record of such action or proceeding shall be sealed Upon receipt ofnotification of such termination and sealing

(a) every photograph of such person and photographic plate or proof and all palmprints and fingerprints taken ormade of such person pursuant to the provisions of this article in regard to the action or proceeding terminated excepta dismissal pursuant to section 17056 or 21046 of this chapter and all duplicates and copies thereof except a digitalfingerprint image where authorized pursuant to paragraph (e) of this subdivision shall forthwith be at the discretion ofthe recipient agency either destroyed or returned to such person or to the attorney who represented such person at thetime of the termination of the action or proceeding at the address given by such person or attorney during the action orproceeding by the division of criminal justice services and by any police department or law enforcement agency havingany such photograph photographic plate or proof palmprint or fingerprints in its possession or under its control

(b) any police department or law enforcement agency including the division of criminal justice services whichtransmitted or otherwise forwarded to any agency of the United States or of any other state or of any other jurisdictionoutside the state of New York copies of any such photographs photographic plates or proofs palmprints andfingerprints including those relating to actions or proceedings which were dismissed pursuant to section 17056 or 21046of this chapter shall forthwith formally request in writing that all such copies be destroyed or returned to the policedepartment or law enforcement agency which transmitted or forwarded them and if returned such department oragency shall at its discretion either destroy or return them as provided herein except that those relating to dismissalspursuant to section 17056 or 21046 of this chapter shall not be destroyed or returned by such department or agency

(c) all official records and papers including judgments and orders of a court but not including published court decisionsor opinions or records and briefs on appeal relating to the arrest or prosecution including all duplicates and copies

thereof on file with the division of criminal justice services any court police agency or prosecutors office shall be sealedand not made available to any person or public or private agency

(d) such records shall be made available to the person accused or to such persons designated agent and shall be madeavailable to (i) a prosecutor in any proceeding in which the accused has moved for an order pursuant to section 17056or 21046 of this chapter or (ii) a law enforcement agency upon ex parte motion in any superior court or in any districtcourt city court or the criminal court of the city of New York provided that such court sealed the record if such agencydemonstrates to the satisfaction of the court that justice requires that such records be made available to it or (iii) anystate or local officer or agency with responsibility for the issuance of licenses to possess guns when the accused hasmade application for such a license or (iv) the New York state department of corrections and community supervisionwhen the accused is on parole supervision as a result of conditional release or a parole release granted by the New Yorkstate board of parole and the arrest which is the subject of the inquiry is one which occurred while the accused wasunder such supervision or (v) any prospective employer of a police officer or peace officer as those terms are defined insubdivisions thirty-three and thirty-four of section 120 of this chapter in relation to an application for employment as apolice officer or peace officer provided however that every person who is an applicant for the position of police officeror peace officer shall be furnished with a copy of all records obtained under this paragraph and afforded an opportunityto make an explanation thereto or (vi) the probation department responsible for supervision of the accused when thearrest which is the subject of the inquiry is one which occurred while the accused was under such supervision and

2 A report of the termination of the action or proceeding in favor of the accused shall be sufficient notice of sealing tothe commissioner of the division of criminal justice services unless the report also indicates that the court directed thatthe record not be sealed in the interests of justice Where the court has determined pursuant to subdivision one of thissection that sealing is not in the interest of justice the clerk of the court shall include notification of that determinationin any report to such division of the disposition of the action or proceeding

3 For the purposes of subdivision one of this section a criminal action or proceeding against a person shall be consideredterminated in favor of such person where

(a) an order dismissing the entire accusatory instrument against such person pursuant to article four hundred seventywas entered or

(b) an order to dismiss the entire accusatory instrument against such person pursuant to section 17030 17050 1705517056 18070 21020 21046 or 21047 of this chapter was entered or deemed entered or an order terminating theprosecution against such person was entered pursuant to section 18085 of this chapter and the people have not appealedfrom such order or the determination of an appeal or appeals by the people from such order has been against the peopleor

(c) a verdict of complete acquittal was made pursuant to section 33010 of this chapter or

(d) a trial order of dismissal of the entire accusatory instrument against such person pursuant to section 29010 or 36040of this chapter was entered and the people have not appealed from such order or the determination of an appeal orappeals by the people from such order has been against the people or

(e) an order setting aside a verdict pursuant to section 33030 or 37010 of this chapter was entered and the people havenot appealed from such order or the determination of an appeal or appeals by the people from such order has beenagainst the people and no new trial has been ordered or

(f) an order vacating a judgment pursuant to section 44010 of this chapter was entered and the people have not appealedfrom such order or the determination of an appeal or appeals by the people from such order has been against the peopleand no new trial has been ordered or

(g) an order of discharge pursuant to article seventy of the civil practice law and rules was entered on a ground whichinvalidates the conviction and the people have not appealed from such order or the determination of an appeal or appealsby the people from such order has been against the people or

(h) where all charges against such person are dismissed pursuant to section 19075 of this chapter In such event the clerkof the court which empaneled the grand jury shall serve a certification of such disposition upon the division of criminaljustice services and upon the appropriate police department or law enforcement agency which upon receipt thereof shallcomply with the provisions of paragraphs (a) (b) (c) and (d) of subdivision one of this section in the same manner as isrequired thereunder with respect to an order of a court entered pursuant to said subdivision one or

(i) prior to the filing of an accusatory instrument in a local criminal court against such person the prosecutor elects notto prosecute such person In such event the prosecutor shall serve a certification of such disposition upon the divisionof criminal justice services and upon the appropriate police department or law enforcement agency which upon receiptthereof shall comply with the provisions of paragraphs (a) (b) (c) and (d) of subdivision one of this section in the samemanner as is required thereunder with respect to an order of a court entered pursuant to said subdivision one

(j) following the arrest of such person the arresting police agency prior to the filing of an accusatory instrument in alocal criminal court but subsequent to the forwarding of a copy of the fingerprints of such person to the division ofcriminal justice services elects not to proceed further In such event the head of the arresting police agency shall serve acertification of such disposition upon the division of criminal justice services which upon receipt thereof shall complywith the provisions of paragraphs (a) (b) (c) and (d) of subdivision one of this section in the same manner as is requiredthereunder with respect to an order of a court entered pursuant to said subdivision one

(k) (i) The accusatory instrument alleged a violation of article two hundred twenty or section 24036 of the penal lawprior to the taking effect of article two hundred twenty-one of the penal law or a violation of article two hundred twenty-one of the penal law (ii) the sole controlled substance involved is marijuana (iii) the conviction was only for a violationor violations and (iv) at least three years have passed since the offense occurred

(l) An order dismissing an action pursuant to section 21540 of this chapter was entered

4 A person in whose favor a criminal action or proceeding was terminated as defined in paragraph (a) through (h) ofsubdivision two of this section prior to the effective date of this section may upon motion apply to the court in whichsuch termination occurred upon not less than twenty days notice to the district attorney for an order granting to suchperson the relief set forth in subdivision one of this section and such order shall be granted unless the district attorneydemonstrates to the satisfaction of the court that the interests of justice require otherwise A person in whose favor acriminal action or proceeding was terminated as defined in paragraph (i) or (j) of subdivision two of this section prior tothe effective date of this section may apply to the appropriate prosecutor or police agency for a certification as describedin said paragraph (i) or (j) granting to such person the relief set forth therein and such certification shall be granted bysuch prosecutor or police agency

Credits(Added L1976 c 877 sect 1 Amended L1977 c 835 sectsect 1 2 L1977 c 905 sect 1 L1980 c 192 sect 2 L1981 c 122 sect1 L1985 c 208 sect 1 L1986 c 294 sect 1 L1986 c 837 sect 3 L1991 c 142 sectsect 1 to 30 L1994 c 169 sect 80 L2001 c487 sect 1 eff Nov 1 2002 L2004 c 518 sect 1 eff Nov 1 2004 L2011 c 62 pt C subpt B sect 73 eff March 31 2011L2015 c 449 sect 1 eff Nov 20 2015)

State of New YorkSupreme Court Appellate Division

Third Judicial Department

Decided and Entered June 15 2017 523504 ________________________________

BOARD OF TRUSTEES OF THEVILLAGE OF GROTON

Respondentv

NORFE J PIRRO et alAppellants

________________________________

In the Matter of NORFE JPIRRO et al

Appellantsv OPINION AND ORDER

TIM WILLIAMS as Chief ofPolice of the Village of Groton et al

Respondentsand

BOARD OF TRUSTEES OF THE VILLAGE OF GROTON

Respondent________________________________

Calendar Date May 2 2017

Before Peters PJ Garry Lynch Clark and Aarons JJ

__________

Maines Firm PLLC Ithaca (Russell E Maines of counsel)for appellants

Barney Grossman Dubow and Troy LLP Ithaca (William JTroy III of counsel) for Board of Trustees of the Village ofGroton respondent

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Sandra S Park Womens Rights Project American New YorkCity for American Civil Liberties Union Foundation and othersamici curiae

__________

Garry J

Appeal from an order and judgment of the Supreme Court(Rumsey J) entered July 8 2016 in Tompkins County whichamong other things (1) denied defendants motion to dismiss thecomplaint in the action and (2) partially dismissed petitionersapplication in a proceeding pursuant to CPLR article 78 toenjoin respondents from enforcing the Village of Groton Propertyand Building Nuisance Law

In April 2014 the Board of Trustees of the Village ofGroton (hereinafter Board) passed Local Law No 4 (2014) of theVillage of Groton entitled the Property and Building NuisanceLaw (hereinafter Nuisance Law) This law establishes multiplemethods by which a property may be identified as a publicnuisance and includes a system by which points are assigned forvarious forms of proscribed conduct ranging from two points forminor offenses to 12 points for a broad variety of Penal Lawviolations A property accumulating 12 or more points within sixmonths or 18 or more points within one year or upon whichspecified offenses occur is deemed to be a public nuisance Article II of the Nuisance Law provides that upon such adetermination the owner must be given written notice and anopportunity to abate the nuisance within specified time limits(see Local Law No 4 [2014] of Village of Groton sect 152-6 [C][6]) Thereafter the Board may authorize a civil action forrelief including a permanent injunction a temporary closingorder or a penalty of up to $1000 per day Article IIIestablishes administrative remedies to be pursued by Villageofficials such as ordering the propertys closure or suspendingits certificate of use

Norfe J Pirro owns several residential rental propertiesand is the managing member of Heritage Homestead Properties LLCwhich also owns residential rental properties in the Village

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Several of these properties were formerly three- and four-unitapartment buildings but have now been converted to single roomoccupancy such that as many as a dozen individual tenants maylease rooms within a single structure In September 2014 theVillage notified Pirro that two of his properties had accumulatedenough points to constitute public nuisances pursuant to theNuisance Law In November 2014 Pirro was further notified thata property owned by Heritage had accumulated points and thusbecome a public nuisance In September 2015 the Board commencedan action under the Nuisance Law against Pirro Heritage thethree previously-mentioned properties and a fourth property ownedby Heritage (hereinafter collectively referred to as defendants)naming the properties in rem The complaint alleged that thefour properties constituted unabated public nuisances and soughtrelief in the form of penalties injunctive relief and eithertemporary closure or temporary receivership In their answerdefendants set forth affirmative defenses alleging as pertinenthere that the Nuisance Law conflicted with state law andviolated the tenants rights to seek redress of grievances fromlaw enforcement and further asserted a counterclaim InNovember 2015 Pirro and Heritage commenced a proceeding pursuantto CPLR article 78 against the Board and others (hereinaftercollectively referred to as respondents) seeking a permanentinjunction enjoining enforcement of the Nuisance Law respondentsanswered and asserted that this petition failed to state a causeof action In the action defendants thereafter moved to dismissthe complaint for failure to state a cause of action and forsummary judgment dismissing the complaint and in their favor upontheir counterclaim

In a combined ruling in the civil action and the CPLRarticle 78 proceeding Supreme Court held that the portion of theNuisance Law establishing administrative remedies wasunconstitutional The court thus partially granted the motionfor summary judgment by severing article III from the NuisanceLaw and partially granted the petition by permanently enjoiningrespondents from enforcing that article The court otherwisedenied the motion and dismissed the petition Defendants

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appealed from the order in the action1 This Court grantedamicus curiae status to several interested groups

Defendants and the amici curiae challenge the substantivevalidity of the Nuisance Law on multiple grounds alleging amongother things that it is preempted unconstitutionally overbroadand otherwise unconstitutional They further assert that theNuisance Law is representative of similar municipal ordinancesthat have disproportionately negative impacts on crime victimsincluding victims of domestic violence and that have notpreviously been tested in the appellate courts of this state (seegenerally Theresa Langley Comment Living Without ProtectionNuisance Property Laws Unduly Burden Innocent Tenants andEntrench Divisions Between Impoverished Communities and LawEnforcement 52 Hous L Rev 1255 [2015])

Initially Supreme Court properly rejected defendantsargument that the Nuisance Law does not apply to them based uponprinciples of statutory interpretation We must construe thestatutory language in such a manner as to discern and giveeffect to the [drafters] intention (Matter of Albany Law Schoolv New York State Off of Mental Retardation amp Dev Disabilities19 NY3d 106 120 [2012] see Matter of Level 3 CommunicationsLLC v Clinton County 144 AD3d 115 117 [2016]) In doing so weare to give effect to the plain meaning of clear and unambiguouslanguage (see Pultz v Economakis 10 NY3d 542 547 [2008])construe the provisions of the challenged law together unless acontrary legislative intent is expressed and harmonize therelated provisions in a way that renders them compatible (Matterof Liberius v New York City Health amp Hosps Corp 129 AD3d 11701171-1172 [2015] [internal quotation marks and citationsomitted])

1 Heritage and Pirro also filed a separate notice of appealfrom the judgment in the CPLR article 78 proceeding However asthe appellate brief raises no arguments challenging SupremeCourts determinations in the proceeding any such arguments aredeemed to be abandoned (see generally Matter of Schulz v New YorkState Legislature 5 AD3d 885 888 n 2 [2004] appeal dismissed 2NY3d 793 [2004] lv denied 3 NY3d 606 [2004])

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The Nuisance Law provides that a public nuisance can existat a building erection or place or immediately adjacent to thebuilding erection or place as a result of the operation of thebusiness (Local Law No 4 [2014] of Village of Groton sect 152-3[K]) As Supreme Court found the phrase as a result of theoperation of the business does not modify everything thatprecedes it including the initial phrase at a buildingerection or place2 The Nuisance Law defines a buildingbroadly in a manner that suggests no intention to limit thelaws application to a particular manner of use The law furtherdefines a business office as either a building or a portionthereof used for business activities this definition would berendered meaningless if the only type of building covered bythe law were those used in the operation of a business (seeMatter of Rubeor v Town of Wright 134 AD3d 1211 1212-1213[2015] lv denied 27 NY3d 902 [2016]) Nothing else in theNuisance Law suggests any intent to limit the laws coverage onthe contrary the provision entitled Findings sets out a broadintent to regulate public nuisances due to interference with thepublic interest in a wide variety of manners relative to publichealth safety and welfare (Local Law No 4 [2014] of Village ofGroton sect 152-1) Applying the rule of the last antecedent togive effect to the law as a whole and to harmonize all of itsprovisions (see Friedman v Connecticut Gen Life Ins Co 9 NY3d105 115 [2007] McKinneys Cons Laws of NY Book 1 Statutes sect254) we agree with Supreme Court that the phrase as a result ofthe operation of the business was intended to modify only thephrase that immediately precedes it and thus it neither limitsthe laws general application to businesses nor excludesresidential properties from its reach Accordingly defendantsmotion to dismiss the complaint for failure to state a claim wasproperly denied

Next defendants contend that the Nuisance Law improperlyimposes vicarious liability upon property owners for tenantmisconduct that the owners cannot control or foresee This

2 Although we need not reach it defendants furthercontention that their residential rental properties are notbusinesses is unavailing

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assertion is premature as a thing does not become a nuisancesimply because it is declared to be such by [a]municipality (Gunning Sys v City of Buffalo 62 App Div 497499 [1901]) There has been no judicial determination as towhether defendants have violated the Nuisance Law these issuesremain to be adjudicated (compare City of Newburgh v Park FillingSta Inc 273 App Div 24 26 [1947] affd 298 NY 649 [1948]Gunning Sys v City of Buffalo 62 App Div at 499-500 City ofBuffalo v Kellner 90 Misc 407 417 [Erie County Sup Ct 1915])

Next addressing preemption municipalities lack authorityto adopt local laws that are inconsistent with the NYConstitution or any general law (see DJL Rest Corp v City ofNew York 96 NY2d 91 94 [2001]) A local law is preempted whenit conflicts with the provisions of a state statute or impose[s]prerequisite additional restrictions on rights under [s]tate lawso as to inhibit the operation of the [s]tates general laws(Eric M Berman PC v City of New York 25 NY3d 684 690 [2015][internal quotation marks and citation omitted]) The NuisanceLaw requires the owner of a property that has been identified asa public nuisance to meet with counsel for the Village within 10days after receiving written notice and to provide counsel with awritten plan to abate the nuisance within 30 days if a tenantseviction is part of the abatement plan the eviction proceedingmust be commenced within 10 days after the meeting (see Local LawNo 4 [2014] of Village of Groton sect 152-6 [C] [6]) Defendantscontend that as their tenants have month-to-month leases thesetime limits conflict with Real Property Law sect 232-b whichrequires a property owner to provide a month-to-month tenant withat least one months notice before the expiration of the term ofthe tenancy and that the law is therefore preempted in part (seeeg Sills v Dellavale 9 AD3d 561 561-562 [2004])

Initially we reject the Boards argument in oppositioninsofar as it is based upon RPAPL article 7 as summaryproceedings may be used to evict a tenant only in limitedcircumstances (see RPAPL 711) The Nuisance Law encompassesviolations that do not fall within the purview of those statutorygrounds (see Local Law No 4 [2014] of Village of Groton sect 152-3[K]) Nonetheless as the Board argues eviction is not the soleremedy available to defendants the Nuisance Law contains no

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requirement that owners must abate nuisances by terminatingtenancies but allows for other means of addressing the issuesand these have not been explored at this point in theproceedings Accordingly we do not find the laws abatementprovisions to be preempted

The amici curiae argue that the Nuisance Law is preemptedby several state laws that protect the rights of domesticviolence victims but they lack status to raise this claim as itis a new issue that was never raised by defendants (see 22 NYCRR50023 [a] [4] Matter of Lezette v Board of Educ Hudson CitySchool Dist 35 NY2d 272 282 [1974] Reform Educ FinInequities Today [REFIT] v Cuomo 199 AD2d 488 490 [1993]mod 86 NY2d 279 [1995]) Defendants asserted in Supreme Courtthat the Nuisance Law conflicts with federal law pertaining todomestic violence victims however this claim was neither raisedin defendants appellate brief nor in that of the amici curiaeand is thus deemed to be abandoned (see generally Matter ofSchulz v New York State Legislature 5 AD3d at 888 n 2) Nevertheless the general issue of the negative impact of the lawupon domestic violence victims was raised as part of defendantsconstitutional overbreadth claims and is addressed below

In light of the findings above and as these issues did notfully resolve the matter we now address the constitutionality ofthe Nuisance Law (see Matter of Syquia v Board of Educ ofHarpursville Cent School Dist 80 NY2d 531 535 [1992] Peoplev Bowe 61 AD3d 1185 1186 [2009] lv denied 12 NY3d 923 [2009]) The various challenges raised include a claim that the law isunconstitutionally overbroad in that it deters tenants fromseeking assistance from police by placing them at risk of losingtheir homes The test for determining overbreadth is whetherthe law on its face prohibits a real and substantial amount ofconstitutionally protected conduct (People v Barton 8 NY3d 7075 [2006] see Houston v Hill 482 US 451 458-459 [1987] UnitedStates v Awan 459 F Supp 2d 167 180 [ED NY 2006] affd 384 FedAppx 9 [2d Cir 2010] cert denied 562 US 1170 [2011]) A lawwill not be found to be unconstitutionally overbroad merelybecause it is possible to conceive of a single impermissibleapplication (Members of City Council of City of Los Angeles vTaxpayers for Vincent 466 US 789 800 n 19 [1984] [internal

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quotation marks and citation omitted] see People v Barton 8NY3d at 75-76) Instead in considering such a claim a courtmust assess the wording of the statute ndash without reference tothe defendants conduct ndash to decide whether a substantial numberof its applications are unconstitutional judged in relation tothe statutes plainly legitimate sweep (People v Marquan M 24NY3d 1 8 [2014] [internal quotation marks and citationsomitted] see Virginia v Hicks 539 US 113 119-120 [2003]) Inthis analysis clear and unequivocal statutory language ispresumptively entitled to authoritative effect (People v Suber19 NY3d 247 252 [2012] accord People v Marquan M 24 NY3d at9)

Initially the Board does not dispute that constitutionallyprotected conduct is implicated in the claim that the NuisanceLaw deters tenants from seeking police assistance Indeed theright to petition the government for redress of grievances isone of the most precious of the liberties safeguarded by theBill of Rights (BEampK Constr Co v NLRB 536 US 516 524 [2002][internal quotation marks and citation omitted] accord City ofNew York v Beretta USA Corp 524 F3d 384 397 [2d Cir 2008]cert denied 556 US 1104 [2009]) This protection includes theright to make criminal complaints to the police (see Jackson vNew York State 381 F Supp 2d 80 89 [ND NY 2005] Morris vDapolito 297 F Supp 2d 680 692 [SD NY 2004]) As the right topetition protects a particular freedom of expression it isanalyzed according to the same constitutional principles thatapply to the right of free speech (McDonald v Smith 472 US 479482 [1985] see Lehmuller v Incorporated Vil of Sag Harbor 944F Supp 1087 1095 [ED NY 1996]) Thus we turn to the questionwhether the Nuisance Law burdens a real and substantial amount ofsuch constitutionally protected expression

The first step in this analysis is to examine the text ofthe Nuisance Law as it is impossible to determine whether astatute reaches too far without first knowing what the statutecovers (United States v Williams 553 US 285 293 [2008] accord People v Marquan M 24 NY3d at 9) The points that accumulatetoward a public nuisance determination under the Nuisance Law areassessed according to a comprehensive list of criminal and non-criminal events These range from [s]uffering or permitting the

-9- 523504

premises to become disorderly (Local Law No 4 [2014] of Villageof Groton sect 152-3 [K] [1] [b]) through various violations ofamong others the Code of the Village of Groton the AlcoholicBeverage Control Law and the Penal Law Violations need notinvolve criminal prosecution or conviction and are proven by apreponderance of the evidence The evidence may consist ofdocumentation of police reports and various other forms of policeactivity such as investigative reports and the execution ofsearch warrants (Local Law No 4 [2014] of Village of Grotonsect 152-3 [M]) Nothing in the Nuisance Law precludes theassessment of points against a property for police involvementresulting from a tenants exercise of the right to petition thegovernment for redress by summoning police Moreover as theNuisance Law assigns 12 points for a single occurrence of certainserious crimes and deems a property to be a public nuisance uponaccumulating 12 points within six months it permits a propertyto be declared a public nuisance as the result of a report topolice of a single offense Critically there is no distinctionbetween crimes committed by tenants and those committed againsttenants the Nuisance Law thus permits a determination that aproperty is a public nuisance solely because a tenant is a victimof a crime

In addition to the point system the Nuisance Law alsoestablishes other methods by which a property may be shown to bea public nuisance Most significantly one of these providesthat a preponderance of evidence showing repeated criminalactivity [that] has an adverse impact as defined in [theNuisance Law] on [a] property or neighborhood constitutes primafacie evidence of a public nuisance (Local Law No 4 [2014] ofVillage of Groton sect 152-4 [C] [3]) An adverse impact isdefined to specifically include ndash together with arrests and othersuch events ndash complaints made to law enforcement officials ofillegal activity associated with the property (Local Law No 4[2014] of Village of Groton sect 152-3 [A]) The Nuisance Lawsclear and unequivocal text (People v Suber 19 NY3d at 252)thus unambiguously establishes that a property may be deemed tobe a public nuisance as the direct result of complaints topolice As with the point system there is no exception in thisprovision for complaints to police made by tenants in theexercise of their First Amendment rights to petition the

-10- 523504

government

The Nuisance Laws provisions pertaining to remediesdemonstrate that the loss of a tenants home may result directlyfrom the designation of a property as a public nuisance Aspreviously noted the Nuisance Law expressly permits owners toinclude the eviction of tenants in the required plans to abatepublic nuisances ndash again with no exception for tenants who mayhave caused points to be assessed against a property by summoningpolice because they were victimized by criminal activity or whootherwise exercised their constitutionally-protected right torequest police assistance Further as the relief permitted byarticle II of the Nuisance Law includes the propertys temporaryclosure all tenants and occupants of a property where illegalactivity occurs ndash not just those who actually commit a violationndash are at risk of losing their homes upon a declaration that theproperty is a public nuisance The plain language of the lawtherefore tends to discourage tenants from seeking help frompolice As the amici curiae assert this discouragement may havea particularly severe impact upon victims of domestic violence(see generally Cari Fais Note Denying Access to Justice TheCost of Applying Chronic Nuisance Laws to Domestic Violence 108Colum L Rev 1181 [2008]) If a tenant who has an order ofprotection against an individual because of prior domesticviolence calls police for assistance in enforcing the orderpoints may be assessed against the property Further if atenant summons police because he or she has been the victim of acrime of domestic violence involving assault or one of the otheroffenses worth 12 points the Nuisance Law automatically deemsthe property to be a public nuisance placing the tenant at riskof losing his or her home solely because of this victimization

While this Courts overbreadth analysis must be premisedsolely upon the text of the law we nevertheless note that therecord establishes that the Nuisance Law has in fact been appliedto result in the assessment of points against properties becausetenants called for police assistance even in situations wherethe tenants were victims rather than perpetrators In oneexample a tenant called police from another location to reportthat she was afraid to return home because an intoxicated personin her apartment had pushed her and had a stick that she feared

-11- 523504

he would use against her The police protected the tenantssafety by transporting her to a relatives home four points werethen assessed against the property where she resided Fourpoints were likewise assessed when police were summoned to adomestic disturbance between tenants learned that an order ofprotection was in place and arrested one of the tenants Pointswere assessed when a tenant called police to report that hisapartment had been broken into and items had been stolen andalso when a tenant called police to report that several personsoutside her apartment had shouted threats and tried to gainentrance by slamming against the door The record furtherreveals that points have been assessed when tenants requestedpolice assistance in noncriminal circumstances as when tenantsasked police to mediate in verbal disagreements over such mattersas religion or the use of shared property Pirro stated that hehad terminated several tenancies as a result of such incidents inan effort to comply with the Nuisance Laws abatementrequirements and the record reveals that the points assessed forsuch incidents contributed to the total point assessments thatled to the commencement of this action

It is thus apparent that the Nuisance Law has a chillingeffect upon tenants exercise of their First Amendment right topetition the government in that it penalizes them for doing soby using their constitutionally protected activity as a basis foridentifying their homes as public nuisances Further and aspreviously discussed the scope of the Nuisance Law is notlimited to business properties or even to rental properties butextends to every building erection or place in the Village(Local Law No 4 [2014] of Village of Groton sect 152-3 [K]) Assuch its deterrent effect upon the exercise of the right topetition for redress of grievances potentially extends to everyVillage property owner any of whom could lose their homes orbusinesses under the plain text of the Nuisance Law if they calllaw enforcement to request assistance or report a crime Wefurther note that nothing in the Nuisance Law reveals whetherVillage officials assess points against all properties in theVillage for every incident involving police assistance or ifnot what criteria are used in selecting the properties that willbe subject to point assessments (see Houston v Hill 482 US at466-467)

-12- 523504

We are not unsympathetic to the Boards arguments that theNuisance Law was intended to protect residents from crime ratherthan to punish them for reporting it and that it serves thelaudable public purpose of addressing serious communityproblems of noise crime and general disorder that have arisen inthe Village as a result of the presence of properties like thoseat issue here (People v Marquan M 24 NY3d at 11) Policereports complaints from neighbors and other evidence in therecord reveal frequent disturbances associated with defendantsproperties and support the determination that such activity isdetrimental to the health safety and welfare of residentsvisitors and businesses in the Village (Local Law No 4 [2014] ofVillage of Groton sect 152-1) Nevertheless the burdens imposed bythe Nuisance Law upon First Amendment freedom of expressionalthough apparently content neutral are not narrowly tailoredto serve [this] significant governmental interest nor does theNuisance Law appear to permit alternative channels forexpression by providing a means by which residents can exercisetheir right to request assistance from police without riskingdeterminations that their homes are public nuisances (Deegan vCity of Ithaca 444 F3d 135 142 [2d Cir 2006] see People vBarton 8 NY3d at 76)

Thus we find that the Nuisance Law facially prohibits areal and substantial amount of expression guarded by the FirstAmendment (People v Marquan M 24 NY3d at 8 quoting People vBarton 8 NY3d at 75) Such a showing suffices to invalidateall enforcement of [the Nuisance Law] until and unless alimiting construction or partial invalidation so narrows it as toremove the seeming threat or deterrence to constitutionallyprotected expression (Virginia v Hicks 539 US at 118-119[internal quotation marks and citations omitted]) There is noseverability clause in the Nuisance Law and in any event theunconstitutional aspects of the law are so interwoven into itsprovisions that severance would be impractical (see People vMarquan M 24 NY3d at 11 Anonymous v City of Rochester 13 NY3d35 53-54 [2009]) We are thus constrained to hold that asdrafted Local Law No 4 (2014) of the Village of Groton isoverbroad and facially invalid under the First Amendment Accordingly defendants motion for summary judgment dismissingthe complaint and for judgment in their favor on the counterclaim

-13- 523504

should have been granted The parties remaining arguments anddefendants counterclaim are rendered academic by thisdetermination

Peters PJ Lynch Clark and Aarons JJ concur

ORDERED that the order and judgment is modified on thelaw without costs by reversing so much thereof as denieddefendants motion for summary judgment dismissing the complaintsaid motion granted summary judgment awarded to defendantscomplaint dismissed and it is declared that Local Law No 4(2014) of the Village of Groton is overbroad and facially invalidunder the First Amendment and as so modified affirmed

Robert D MaybergerClerk of the Court

US DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT WASHINGTON DC 20410-0500

wwwhudgov espanolhudgov

SEPTEMBER 13 2016

Office of General Counsel Guidance on Application of Fair Housing Act Standards to the

Enforcement of Local Nuisance and Crime-Free Housing Ordinances Against Victims of Domestic Violence Other Crime Victims and Others Who Require Police or

Emergency Services

I Introduction

The Fair Housing Act (or the Act) prohibits discrimination in the sale rental or financing of dwellings and in other housing-related activities on the basis of race color religion sex disability familial status or national origin1 The Department of Housing and Urban Developmentrsquos (HUDrsquos) Office of General Counsel issues this guidance to explain how the Fair Housing Act applies to ensure that the growing number of local nuisance ordinances and crime-free housing ordinances do not lead to discrimination in violation of the Act2

This guidance primarily focuses on the impact these ordinances may have on domestic violence victims but the Act and the standards described herein apply equally to victims of domestic violence and other crimes and to those in need of emergency services who may be subjected to discrimination prohibited by the Act due to the operation of these ordinances This guidance therefore addresses both the discriminatory effects and disparate treatment methods of proof under the Act and briefly describes the obligation of HUD fund recipients to consider the impacts of these ordinances in assessing how they will fulfill their affirmative obligation to further fair housing3 HUD will issue subsequent guidance addressing more specifically how the Fair Housing Act applies to ensure that local nuisance or crime-free housing ordinances do not lead to housing discrimination because of disability4

1 42 USC sectsect 3601-19 2 State and local governments use a variety of terms including ldquonuisancerdquo ldquochronic nuisancerdquo ldquocrime-freerdquo or ldquodisorderly behaviorrdquo to describe the types of ordinances addressed by this guidance 3Local governments and landlords who receive federal funding may also violate the Violence Against Women Act which among other things prohibits them from denying ldquoassistance tenancy or occupancyrdquo to any person because of domestic violence-related activity committed by a household member guest or ldquoother person in controlrdquo of the tenant if the tenant or an ldquoaffiliated individualrdquo is the victim 42 USC sect 14043e-11(b)(3)(A)4 Discrimination prohibited by the Fair Housing Act includes ldquoa refusal to make a reasonable accommodation in rules policies practices and services when such accommodation may be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwellingrdquo 42 USC sect 3604(f)(3)(B)

II Background

A Nuisance Ordinances

A growing number of local governments are enacting a variety of nuisance ordinances that can affect housing in potentially discriminatory ways For example in Illinois alone more than 100 such ordinances have been adopted5 These ordinances often label various types of conduct associated with a propertymdashwhether the conduct is by a resident guest or other personmdasha ldquonuisancerdquo and require the landlord or homeowner to abate the nuisance under the threat of a variety of penalties6 The conduct defined as a nuisance varies by ordinance and has ranged from conduct affecting the appearance of the property ndash such as littering7 failing to tend to onersquos lawn8

or abandoning a vehicle9 to general prohibitions related to the conduct of a tenant or guest ndash such as disorderly or disruptive conduct10 disrupting the quiet use and enjoyment of neighboring properties11 or any criminal conduct occurring on or near the property12 Nuisance conduct often

5 The Sargent Shriver National Center on Poverty Law noted that in August 2013 ldquomore than 100 municipalities in the state of Illinois alone ha[d] adopted some kind of [nuisance or crime-free] ordinancerdquo with the number continuing to increase Emily Werth SARGENT SHRIVER NATIONAL CENTER ON POVERTY LAW The Cost of Being ldquoCrime Freerdquo Legal and Practical Consequences of Crime Free Rental Housing and Nuisance Property Ordinances 1 (2013) httppovertylaworgsitesdefaultfilesfileshousing-justicecost-of-being-crime-freepdf Other research has identified 37 nuisance ordinances in Pennsylvania News Release Pennsylvania Coalition Against Domestic Violence Executive Director Dierkers Praises Legislators for Shielding Domestic Violence Victims from Eviction (Oct 16 2014) [hereinafter News Release] httpwwwpcadvorgResourcesHB1796_PR_10162014pdf Additionally 59 nuisance ordinances have been identified across every region of the country including in large metropolitan cities and small towns 39 of which define domestic violence assault sexual abuse or battery as nuisance activities Matthew Desmond amp Nicol Valdez Unpolicing the Urban Poor Consequences of Third-Party Policing for Inner-City Women (online supplement) 78 AM SOCIOLOGICAL REV 2ndash3 4ndash18 (2013) [hereinafter Desmond amp Valdez (online supplement)] httpscholarharvardedufilesmdesmondfilesunpolicingasr2013onlinesupplement_0pdf 6 Although nuisance ordinances have been enacted that apply to both owner-occupied and rental housing this guidance focuses on the application of the Fair Housing Act to a local governmentrsquos enactment and enforcement of nuisance and crime-free ordinances against persons who reside in rental housing Much of the legal analysis in this guidance applies equally to owner-occupied housing as well 7 See eg PORTLAND OR CODE sect 14B60010(D)(9) (2013) httpswwwportlandoregongovcitycodec=28531 CARSON CITY NEV CODE sect 80870 (2005) httpswwwmunicodecomlibrarynvcarson_citycodescode_of_ordinancesnodeId=TIT8PUPESAMO_CH808NU_808110JUABUNVE 8 See eg JEFFERSON WIS CODE sect 197-6(F) (2002) httpecode360com9781229 9 See eg ADAIR VILLAGE OR CODE sect 40610(5) (2012) httpwwwadairvillageorgwordpresswp-contentuploads201206Chapter-40-Public-Nuisance-2012pdf CARSON CITY NEV CODE sect 808110 (2005) httpswwwmunicodecomlibrarynvcarson_citycodescode_of_ordinancesnodeId=TIT8PUPESAMO_CH808NU_808110JUABUNVE see also Werth supra note 5 at 17 10 See eg WATERTOWN WIS CODE sect 1208(d)(ii) (2014)httpwwwciwatertownwiusdocument_centerChapter_12pdf WEST CHICAGO ILL CODE sect 10-53 (2008) httpswwwmunicodecomlibraryilwest_chicagocodescode_of_ordinancesnodeId=COOR_CH10NU_ARTVIICHNUPRAB_S10-52VI 11 See eg ARIZ REV STAT sect 13-2917 (2006) 12 See SPOKANE WASH CODE sect 1008A20(H) (2016) httpsmyspokanecityorgsmcSection=1008A020see also ACLU WOMENrsquoS RIGHTS PROJECT amp THE SOC SCI RESEARCH COUNCIL Silenced How Nuisance Ordinances Punish Crime Victims in New York 8 (2015) [hereinafter Silenced]httpswwwacluorgreportsilenced-how-nuisance-ordinances-punish-crime-victims-new-york (citing as examples of harmful nuisance ordinances PATTERSON NY CODE sect 72-2(K) (2009)

includes what is characterized by the ordinance as an ldquoexcessiverdquo number of calls for emergency police or ambulance services typically defined as just a few calls within a specified period of time by a tenant neighbor or other third party whether or not directly associated with the property13

In some jurisdictions an incident of domestic violence is defined as a nuisance without regard to whether the resident is the victim or the perpetrator of the domestic violence14 In other jurisdictions incidents of domestic violence are not specifically defined as nuisances but may still be categorized as such because the ordinance broadly defines nuisance activity as the violation of any federal state or local law or includes conduct such as disturbing the peace excessive noise disorderly conduct or calls for emergency services that exceed a specified number within a given timeframe15 Some ordinances specifically define ldquoexcessiverdquo calls for police or emergency services as nuisances even when the person in need of services is a victim of domestic violence or another crime or otherwise in need of police medical or other emergency assistance16 Even where ordinances expressly exclude victims of domestic violence or other crimes victims are still frequently deemed to have committed nuisance conduct because police and other emergency service providers may not log the call as domestic violence instead categorizing it incorrectly as property damage disturbing the peace or another type of nuisance conduct17 Some victims also are hesitant or afraid to identify themselves as victims of abuse18

The ordinances generally require housing providers either to abate the alleged nuisance or risk penalties such as fines loss of their rental permits condemnation of their properties and in some extreme instances incarceration19 Some ordinances may require the housing provider to evict the resident and his or her household after a specified number of alleged nuisance

httpwwwpattersonnyorgPDFsCodesChapter72-Chronic_Public_Nuisance_Abatementpdf SCOTIA NY CODEsect 196-12 (2009) httpecode360com13862484 GLENS FALLS NY CODE sect 146-2(C)(7) (2000)httpecode360com14410432 AUBURN NY CODE sect 213-3(D)(1) (1997) httpecode360com8969396ROCHESTER NY CHARTER sect 3-15(B)(1)(W) (1984) httpecode360com28971339) News Release supra note 5 13 See Werth supra note 5 at 4 18 n7014 See eg SPOKANE WASH CODE sect 1008A20(H)(2)(q) (2016) httpsmyspokanecityorgsmcSection=1008A020 see also Silenced supra note 12 at 12 Anna Kastner The Other War at Home Chronic Nuisance Laws and the Revictimization of Survivors of Domestic Violence 103 CALIFL REV 1047 1058 (2015) News Release supra note 5 15 See Kastner supra note 14 at 1058 (ldquoSimilarly the ordinance could cause survivors to be evicted either because the 911 call was not coded as lsquodomestic violencersquo or because the landlord was not aware that domestic violence was occurring and could not create a plan to remediate the issue properlyrdquo) 16 See Gretchen Arnold amp Megan Slusser Silencing Womens Voices Nuisance Property Laws and Battered Women L amp SOC INQ 15-17 (2015) httpnhlporgfiles00120Silencing20Womens20Voices-20Nuisance20Property20Laws20and20Battered20Women20-20G20Arnold20and20M20Slusserpdf17 See eg BEACON NY CODE sect 159-3(A)(20) (2011) (exempting domestic violence victims from being penalized under nuisance ordinance where a police officer properly ldquoobserves evidence that a domestic dispute occurredrdquo) 18 See eg Arnold amp Slusser supra note 16 at 15ndash1619 See eg Desmond amp Valdez (online supplement) supra note 5 at 4-18 Cari Fais Denying Access to Justice The Cost of Applying Chronic Nuisance Laws to Domestic Violence 108 COLUM L REV 1181 1189 (2008)

violationsmdashoften quite lowmdashwithin a specific timeframe20 For example in at least one jurisdiction three calls for emergency police or medical help within a 30-day period is considered to be a nuisance21 and in another jurisdiction two calls for such services within one year qualify as a nuisance22 Even when nuisance ordinances do not explicitly require evictions a number of landlords resort to evicting the household to avoid penalties23

In many jurisdictions domestic-violence-related calls are the largest category of calls received by police24 ldquoIntimate partner violence sexual violence and stalking are widespreadrdquo and impact millions of Americans each year25 ldquoOn average 24 people per minute are victims of rape physical violence or stalking by an intimate partner in the United Statesrdquo ndash more than 12 million individuals over the course of a year26 From 1994 to 2010 approximately 80 percent of the victims of intimate partner violence in the nation were women27 Women with disabilities are more likely to be subjected to domestic violence than women without disabilities28

Studies have found that victims of domestic violence often do not report their initial incident of domestic violence and instead suffer multiple assaults before contacting the police or seeking a protective order or other assistance29 Victims of domestic violence often are reluctant to

20 See Werth supra note 5 at 4 n9 21 See eg CINCINNATI OH CODE sect 761-3(a) (2013) httpwwwmunicodecomresourcesgatewayasppid=19996ampsid=35 22 See ST LOUIS MO CODE sect 1542020(G) (2014) httpswwwmunicodecomlibrarymost_louiscodescode_of_ordinancesnodeId=TIT15PUPEMOWE_DIVIVOFAGPUPE_CH1542PUNU 23 See Arnold amp Slusser supra note 16 at 13ndash15 (2015) httpnhlporgfiles00120Silencing20Womens20Voices-20Nuisance20Property20Laws20and20Battered20Women20-20G20Arnold20and20M20Slusserpdf While local governments might not explicitly require eviction as the primary nuisance abatement method in their ordinances in practice governments may indicate to landlords that eviction is the only acceptable nuisance abatement method See eg Matthew Desmond amp Nicol Valdez Unpolicing the Urban Poor Consequences of Third-Party Policing for Inner-City Women 78 AM SOC REV 117 135 (2013) httpscholarharvardedufilesmdesmondfilesdesmondvaldezunpolicingasr__0pdf (ldquo[T]he [Milwaukee Police Department] cleared landlords who evicted domestic violence victimsmdashlsquoPlan Acceptedrsquomdashbut pressured those who refused to do sordquo) 24 Andrew R Klein NATIONAL INST OF JUSTICE US DEPrsquoT OF JUSTICE Practical Implications of Current Domestic Violence Research 1 (2009) httpswwwncjrsgovpdffiles1nij225722pdf 25 CTRS FOR DISEASE CONTROL AND PREVENTION US DEPrsquoT OF HEALTH amp HUMAN SERV Injury Prevention amp Control (last updated Sep 8 2014) httpwwwcdcgovviolencepreventionnisvsinfographichtml 26 CTRS FOR DISEASE CONTROL AND PREVENTION US DEPrsquoT OF HEALTH amp HUMAN SERV UNDERSTANDING INTIMATE PARTNER VIOLENCE (2014) httpswwwcdcgovviolencepreventionpdfipv-factsheetpdf 27 See SUSAN CASTALANO BUREAU OF JUSTICE STATISTICS US DEPrsquoT OF JUSTICE Intimate Partner Violence 1993ndash2010 1 (2015) httpwwwbjsgovcontentpubpdfipv9310pdf See also NATIONAL LAW CENTER ON HOMELESSNESS amp POVERTY Therersquos No Place Like Home State Laws that Protect Housing Rights for Survivors of Domestic and Sexual Violence 5 (2012) [hereinafter No Place Like Home] httpswwwnlchporgTheres_No_Place_Like_Home (ldquoIn some areas of the country 1 in 4 homeless adults reported that domestic violence was a cause of their homelessness and between 50 and 100 of homeless women have experienced domestic or sexual violence at some point in their livesrdquo) 28 OFFICE ON WOMENrsquoS HEALTH US DEPrsquoT OF HEALTH AND HUMAN SERV Violence Against Women With Disabilities (last updated Sep 4 2015) [hereinafter WOMENrsquoS HEALTH] httpwwwwomenshealthgovviolence-against-womentypes-of-violenceviolence-against-women-with-disabilitieshtml 29 KLEIN supra note 24 at 6

seek assistance because of among other things fear of reprisal from their attackers30 Nuisance ordinances (and crime-free housing ordinances) are becoming an additional factor that operates to discourage victims from reporting domestic violence and obtaining the emergency police and medical assistance they need31

For example a woman in Norristown Pennsylvania who had been subjected to domestic violence by her ex-boyfriend was warned by police that if she made one more 911 call she and her young daughter would be evicted from their home pursuant to the local nuisance ordinance32 The ordinance operated under a ldquothree strikerdquo policy allowing her no more than two calls to 911 for help As a result the woman was too afraid to call the police when her ex-boyfriend returned to her home and stabbed her Rather than call for an ambulance she ran out of her house in the hope she would not lose her housing33 A neighbor called the police and due to the serious nature of her injuries the woman was airlifted to the hospital A few days after she returned home from the hospital she was served with eviction papers pursuant to the local nuisance ordinance34

B Crime-Free Lease Ordinances and Crime-Free Housing Programs

A number of local governments enforce crime-free lease ordinances or promote crime-free housing programs that incorporate the use of crime-free lease addenda35 Some of these ordinances operate like nuisance ordinances and penalize housing providers who fail to evict tenants when a tenant resident or other person has allegedly engaged in a violation of a federal state andor local law regardless of whether the tenant or resident was the victim of the crime at issue36 Others mandate or strongly encourage housing providers to include lease provisions that require or permit housing providers to evict tenants where a tenant or resident has allegedly engaged in a single incident of criminal activity regardless of whether the activity occurred on or off the property37

These provisions often allow housing providers to evict tenants when a guest or other person allowed onto the property by the tenant or resident allegedly engages in criminal activity on

30 See Arnold amp Slusser supra note 16 at 15 31 Id at 22 Fais supra note 19 at 1202 Werth supra note 5 at 8 32 Complaint at 9ndash17 Briggs v Borough of Norristown et al No 2013 C 2191 (ED Pa Apr 24 2013) [hereinafter Complaint] httpwwwacluorgfilesassetsnorristown_complaintpdf 33 Id Lakisha Briggs I Was a Domestic Violence Victim My Town Wanted Me Evicted for Calling 911 GUARDIAN (Sep 11 2015) httpswwwtheguardiancomcommentisfree2015sep11domestic-violence-victim-town-wanted-me-evicted-calling-91134 Id See also Press Release US Department of Housing and Urban Development HUD and Philadelphia Area Borough Settle Allegations of Housing Discrimination Against Victims of Domestic Violence (Oct 2 2014) httpportalhudgovhudportalHUDsrc=presspress_releases_media_advisories2014HUDNo_14-121 35 See eg HESPERIA CAL HEALTH AND SAFETY CODE sect 82050 (2015) httpswwwmunicodecomlibrarycahesperiacodescode_of_ordinancesnodeId=TIT8HESA_CH820CRFRREHOPR_820050CRFRREHOPR 36 See Werth supra note 5 at 3 n8 37 See eg SAN BERNARDINO CAL HEALTH AND SAFETY CODE sect 1527050 (2011) httpswwwcisan-bernardinocauscivicaxfilebankblobdloadaspxblobid=19233 City of San Bernardino Crime Free Multi-Housing Program Crime-Free Lease Addendum httpswwwcisan-bernardinocauscivicaxfilebankblobdloadaspxblobid=11259 (ldquoA single violation of any of the provisions of this added addendum shall be deemed a serious violation and a material and irreparable non-compliance It is understood that a single violation shall be good cause for termination of the leaserdquo)

or near the property regardless of whether the resident was a victim of the criminal activity or a party to it38 The criminal activity that constitutes a lease violation is frequently broadly and ambiguously defined and may include any violation of federal state or local laws however minor39 Thus disorderly conduct excessive noise and similar activity may constitute a crime resulting in eviction40 Crime-free lease addenda often do not provide exceptions for cases where a resident or tenant is the victim of domestic violence or another crime41 And as previously noted even where exceptions do exist victims of domestic violence and other crimes may be mistakenly categorized and face eviction despite the exception42 For example police often arrest both the victim and the perpetrator under ldquodual arrestrdquo policies when a victim has defended herself or himself from the perpetrator43

Furthermore some crime-free housing ordinances mandate or strongly encourage housing providers to implement lease provisions that require eviction based on an arrest alone or do not require an arrest or conviction to evict a tenant but rather allow housing providers to rely on a preponderance of the evidence standard while remaining silent on who is responsible for determining that this standard has been met44 The principles discussed in HUDrsquos ldquoOffice of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactionsrdquo45 are instructive in

38 See eg HESPERIA CAL HEALTH AND SAFETY CODE sect 82050 (2015) httpswwwmunicodecomlibrarycahesperiacodescode_of_ordinancesnodeId=TIT8HESA_CH820CRFRREHOPR_820050CRFRREHOPR (mandating that all landlords include the Hesperia Crime-Free Lease Addendum which requires that a single violation of the addendum whether committed by resident guest or other person provides good cause for termination of tenancy) Hesperia Crime-Free Lease Addendum httpwwwcityofhesperiausDocumentCenterView13394 39 See Werth supra note 5 at 17 40 See eg WATERTOWN WIS CODE sect 1208(d)(ii) (2014)httpwwwciwatertownwiusdocument_centerChapter_12pdf 41 See Werth supra note 5 at 8 42 See eg OPEN COMMUNITIES amp SARGENT SHRIVER NATIONAL CENTER ON POVERTY LAW Reducing the Cost of Being Crime Free Alternative Strategies to Crime FreeNuisance Property Ordinances in Illinois 3 (2015) httppovertylaworgsitesdefaultfilesimagesadvocacyhousingreducing-the-cost-of-crime-freepdf 43 See eg Kastner supra note 14 at 1065 see Werth supra note 5 at 21 44 See eg Werth supra note 5 at 12 (noting that some ordinances allow evictions based on arrests or citations alone) LAS VEGAS NEV CODE sect 60920 (2012) (requiring landlords to complete training encouraging use of Crime-Free Addendum which permits eviction based on single alleged violation as shown by preponderance of evidence rather than criminal conviction Las Vegas Crime Free Multi-Housing Program Crime-Free Addendum (2014) httpwwwlvmpdcomPortals0pdfpreventionEnglish_CFAddendum01_2014pdf) SAN BERNARDINOCAL HEALTH AND SAFETY CODE sect 1527050 (2011) httpswwwcisan-bernardinocauscivicaxfilebankblobdloadaspxblobid=19233 (requiring landlords to use Crime-Free Lease Addendum which permits eviction based on single alleged violation of addendum as shown by preponderance of evidence rather than criminal conviction) City of San Bernardino Crime Free Multi-Housing Program Crime-Free Lease Addendum httpswwwcisan-bernardinocauscivicaxfilebankblobdloadaspxblobid=11259) Hesperia Cal Health and Safety Code sect 82050 (2015) httpswwwmunicodecomlibrarycahesperiacodescode_of_ordinancesnodeId=TIT8HESA_CH820CRFRREHOPR_820050CRFRREHOPR (providing chief of police discretion as to whether or not to notify the landlord of the evidence or documents if any used to determine that a resident engaged in criminal activity) see also Werth supranote 5 at 4 45 See HELEN R KANOVSKY GENERAL COUNSEL US DEPrsquoT OF HOUS amp URBAN DEV Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions(2016) httpsportalhudgovhudportaldocumentshuddocid=HUD_OGCGuidAppFHAStandCRpdf

evaluating the fair housing implications of crime-free lease ordinances and crime-free lease addenda mandated or encouraged by localities and enforced by housing providers46

III Discriminatory Effects Liability and Enforcement of Nuisance Ordinances and Crime-Free Housing Ordinances

A local governmentrsquos policies and practices to address nuisances including enactment or enforcement of a nuisance or crime-free housing ordinance violate the Fair Housing Act when they have an unjustified discriminatory effect even when the local government had no intent to discriminate47 Under this standard a facially-neutral policy or practice that has a discriminatory effect violates the Act if it is not supported by a legally sufficient justification48 Thus where a policy or practice that restricts the availability of housing on the basis of nuisance conduct has a disparate impact on individuals of a particular protected class the policy or practice is unlawful under the Fair Housing Act if it is not necessary to serve a substantial legitimate nondiscriminatory interest of the local government or if such interest could be served by another practice that has a less discriminatory effect49

Discriminatory effects liability is assessed under a three-step burden-shifting standard requiring a fact-specific analysis50 The following sections discuss the three steps used to analyze whether a local governmentrsquos enforcement of a nuisance or crime-free housing ordinance results in a discriminatory effect in violation of the Act As explained in Section IV below a different analytical framework is used to evaluate claims of intentional discrimination

A Evaluating Whether the Challenged Nuisance Ordinance or Crime-Free Housing Ordinance Policy or Practice Has a Discriminatory Effect

In the first step of the analysis a plaintiff (or HUD in an administrative enforcement action) has the burden to prove that a local governmentrsquos enforcement of its nuisance or crime-free housing ordinance has a discriminatory effect that is that the local governmentrsquos nuisance or crime-free housing ordinance policy or practice results or predictably will result in a disparate impact on a group of persons because of a protected characteristic51 This is also true for a local

46 In addition to being liable for their own discriminatory conduct housing providers may have a cause of action under the Fair Housing Act against a locality if a localityrsquos ordinance requires housing providers to discriminate based on a protected characteristic See eg Waterhouse v City of Am Canyon 2011 US Dist LEXIS 60065 1 13ndash15 (ND Cal 2011) (concluding that ldquoforcing the owners of a mobile-home park to discriminate on the basis of familial status through a series of city ordinances violates the federal Fair Housing Actrdquo) 47 24 CFR sect 100500 accord Texas Deprsquot of Hous amp Cmty Affairs v Inclusive Cmtys Project Inc ___ US ___ 135 S Ct 2507 2511 (2015) 48 For purposes of this guidance the term ldquopolicy or practicerdquo encompasses governmentsrsquo nuisance and crime-free ordinances as well as their enforcement of the ordinances It also includes government activities related to crime-free housing programs that may not be specified by ordinance 49 24 CFR sect 100500 see also Inclusive Cmtys Project 135 S Ct at 2514ndash15 (summarizing HUDrsquos Discriminatory Effects Standard in 24 CFR sect 100500) 50 See 24 CFR sect 100500 51 24 CFR sect 100500(c)(1) A discriminatory effect can also be proven with evidence that the policy or practice creates increases reinforces or perpetuates segregated housing patterns See 24 CFR sect 100500(a) This guidance addresses only the method for analyzing disparate impact claims which in HUDrsquos experience are more commonly asserted in this context

governmentrsquos policy or practice encouraging or incentivizing housing providers to adopt crime-free lease addenda (and the discussion throughout the guidance applies equally to such actions) This burden is satisfied by presenting evidence proving that the challenged policy or practice actually or predictably results in a disparate impact

Different data sources may be available and useful to demonstrate that a governmentrsquos ordinance actually or predictably results in a disparate impact which is ultimately a fact-specific and case-specific inquiry While state or local statistics typically are presented where available and appropriate based on the local governmentrsquos jurisdiction or other facts particular to a given case national statistics may be relevant and appropriate depending on the specific case and the nature of the claim

Local statistics are likely to be available for use in establishing whether a local governmentrsquos enforcement of its nuisance or crime-free ordinance has a disparate impact Other evidence ndash for example resident data and files demographic data city and police records including data on enforcement of nuisance or crime-free ordinances citations and correspondence between housing providers and city officials and court records regarding nuisance abatement ndash may also be relevant in determining whether a challenged nuisance or crime-free housing ordinance policy or practice causes a disparate impact

Evidence of nationwide disparities in the enforcement of nuisance or crime-free ordinances based on protected characteristics may be relevant to consider depending on the specific case and the nature of the claim52 Also in some cases national statistics may provide grounds for HUD to investigate complaints challenging the enforcement of nuisance ordinances For example nationally women comprise approximately 80 percent of all individuals subjected to domestic violence each year53 which may provide grounds for HUD to investigate under the Fair Housing Act allegations that the adverse effects of a nuisance ordinance fall more heavily on victims of domestic violence

Whether in the context of an investigation or administrative enforcement action by HUD or private litigation a local government will have the opportunity to offer evidence to refute the claim that its nuisance ordinance causes a disparate impact on one or more protected classes

B Evaluating Whether the Challenged Nuisance Ordinance or Crime-Free Housing Ordinance is Necessary to Achieve a Substantial Legitimate Nondiscriminatory Interest

In the second step of the discriminatory effects analysis the burden shifts to the local government to prove that the challenged nuisance or crime-free housing ordinance is necessary

52 Compare Dothard v Rawlinson 433 US 321 330 (1977) (ldquo[R]eliance on general population demographic data was not misplaced where there was no reason to suppose that physical height and weight characteristics of Alabama men and women differ markedly from those of the national populationrdquo) with Mountain Side Mobile Estates Prsquoship v Secrsquoy of Hous amp Urban Dev 56 F3d 1243 1253 (10th Cir 1995) (ldquoIn some cases national statistics may be the appropriate comparable population However those cases are the rare exception and this case is not such an exceptionrdquo) (citation omitted) 53 See CASTALANO supra note 27 at 1

to achieve a substantial legitimate nondiscriminatory interest of the local government54 The interest of the local government may not be hypothetical or speculative meaning the local government must be able to prove with evidence what the government interest is that its interest is legitimate substantial and nondiscriminatory and that the challenged practice is necessary to achieve that interest55 Assertions based on generalizations or stereotypes about persons deemed to engage in nuisance or criminal conduct are not sufficient to prove that an ordinance or its enforcement is necessary to achieve the local governmentrsquos substantial legitimate nondiscriminatory interest

As explained in the preamble to HUDrsquos 2013 Discriminatory Effects Final Rule a ldquosubstantialrdquo interest is a core interest of the organization that has a direct relationship to the function of that organization56 The requirement that an interest be ldquolegitimaterdquo means that the local governmentrsquos justification must be genuine and not false or fabricated57 A number of local governments have nuisance or crime-free ordinances that encourage require or are likely to result in housing providers evicting or taking other adverse housing actions against residents including victims of domestic violence and other crimes because the residents requested police medical or other emergency assistance without regard to whether the calls were reasonable under the circumstances58 Where such a practice is challenged and proven to have a disparate impact the local government would have the difficult burden to prove that cutting off access to emergency services for those in grave need of such services including victims of domestic violence or other crimes thereby potentially endangering their lives safety and security59 in fact achieves a core interest of the local government and was not undertaken for discriminatory reasons or in a discriminatory manner Similarly if the local governmentrsquos policy or practice requires or encourages housing providers to evict victims of domestic violence or other crimes or others in need of emergency services the local government would have the burden to prove that such a policy or practice in fact is necessary to achieve the local governmentrsquos substantial legitimate nondiscriminatory interest

C Evaluating Whether There Is a Less Discriminatory Alternative

The third step of the discriminatory effects analysis is applicable only if a local government successfully proves that its nuisance or crime-free housing ordinance policy or practice is necessary to achieve a substantial legitimate nondiscriminatory interest If the analysis reaches the third step the burden shifts back to the plaintiff or HUD to prove that such interest could be served by another policy or practice that has a less discriminatory effect60

54 24 CFR sect 100500(c)(2) 55 Implementation of the Fair Housing Actrsquos Discriminatory Effects Standard 78 Fed Reg 11460 11471 (Feb 15 2013) (preamble to final rule codified at 24 CFR pt 100) 56 78 Fed Reg at 11470 57 Id58 See Werth supra note 5 at 8 59 When domestic violence victims are evicted on the basis of a nuisance citation they may often lack alternative housing and experience homelessness See eg Amanda Gavin Chronic Nuisance Ordinances Turning Victims of Domestic Violence into ldquoNuisancesrdquo in the Eyes of Municipalities 119 PENN ST L REV 257 260 (ldquoon any given day over 3000 people face homelessness because they are unable to find shelter away from their abusers making domestic violence a leading cause of homelessness in the United Statesrdquo) 60 24 CFR sect 100500(c)(3) accord Inclusive Cmtys Project 135 S Ct at 2515

The identification of a less discriminatory alternative will depend on the particulars of the policy or practice at issue as well as the specific nature of the underlying problem the ordinance seeks to address

IV Intentional Discrimination and Enforcement of Nuisance Ordinances or Crime-Free Housing Ordinances

A local government may also violate the Fair Housing Act if it intentionally discriminates in its adoption or enforcement of a nuisance or crime-free housing ordinance This occurs when the local government treats a resident differently because of sex race or another protected characteristic The analysis is the same as is used to analyze whether any housing ordinance was enacted or enforced for intentionally discriminatory reasons

Generally two types of claims of intentional discrimination may arise One type of intentional discrimination claim arises where a local government enacts a nuisance ordinance or crime-free housing ordinance for discriminatory reasons Another type is where a government selectively enforces a nuisance or crime-free housing ordinance in a discriminatory manner For the first type of claim in determining whether a facially neutral ordinance was enacted for discriminatory reasons courts generally look to certain factors The factors all of which need not be satisfied include but are not limited to (1) the impact of the ordinance at issue such as whether the ordinance disproportionately impacts women compared to men minority residents compared to white residents or residents with disabilities or a certain type of disability compared to residents without disabilities (2) the historical background of the ordinance such as whether there is a history of discriminatory conduct by the local government (3) the specific sequence of events such as whether the locality adopted the ordinance only after significant community opposition motivated by race or another protected characteristic (4) departures from the normal procedural sequence such as whether the locality deviated from normal procedures for enacting a nuisance ordinance (5) substantive departures such as whether the factors usually considered important suggest that a local government should have reached a different result and (6) the legislative or administrative record such as any statements by members of the local decision-making body61

For the second type of intentional discrimination claim selective enforcement where there is no ldquosmoking gunrdquo proving that a local government is selectively enforcing a nuisance or crime-free housing ordinance in a discriminatory way courts look for evidence from which such an inference can be drawn The evidence might be direct or circumstantial For example courts have noted that an inference of intentional sex discrimination could arise directly from evidence

61 Village of Arlington Heights v Metro Hous Dev Corp 429 US 252 265ndash66 (1977) See also Hidden VillLLC v City of Lakewood 867 F Supp 2d 920 942 (ND Ohio 2012) (utilizing Arlington Heights factors to analyze whether municipal action was motivated by discriminatory intent) see eg Valdez v Town of Brookhaven 2005 US Dist LEXIS 36713 47 (EDNY 2005) (explaining factors probative of discriminatory intent in case involving townrsquos alleged disproportionate enforcement of zoning and housing codes against Latinos)

that a housing providers seeks to evict female residents shortly after incidents of domestic violence62

A common method of establishing intentional discrimination indirectly through circumstantial evidence is through the familiar burden-shifting method of proving intentional discrimination originally established by the Supreme Court in the employment context63 In the standard complaint alleging selective enforcement of a nuisance or crime-free ordinance for discriminatory reasons the plaintiff first must produce evidence to establish a prima facie case of disparate treatment This may be shown for example by evidence that (1) the plaintiff (or complainant in an administrative enforcement action) is a member of a protected class (2) a local government official (or housing provider depending on the circumstances) took action to enforce the nuisance or crime-free ordinance or lease addendum against the plaintiff or complainant because the plaintiff or complainant allegedly engaged in nuisance or criminal conduct (3) the local government official or housing provider did not take action to enforce the nuisance or crime-free ordinance or lease addendum against a similarly-situated resident not of the plaintiff or complainantrsquos protected class who engaged in comparable conduct and (4) the local government or housing provider subjected the plaintiff or complainant to an adverse housing action as a result of the enforcement of the nuisance or crime-free ordinance or lease addendum It is then the burden of the local government andor housing provider depending on the circumstances to offer evidence of a legitimate nondiscriminatory reason for the adverse housing action64 The proffered nondiscriminatory reason for the challenged decision must be clear reasonably specific and supported by admissible evidence65 Purely subjective or arbitrary reasons will not be sufficient to demonstrate a legitimate nondiscriminatory basis for differential treatment66

62 See Bouley v Young-Sabourin 394 F Supp 2d 675 678 (D Vt 2005) (explaining that landlordrsquos attempt to evict victim 72 hours after domestic violence incident could give rise to inference of discrimination on the basis of gender) See eg Dickinson v Zanesville Metro Hous Auth 975 F Supp 2d 863 872 (SD Ohio 2013) (articulating that a housing providerrsquos failure to comply with the Violence Against Women Act and assignment of blame to the victim for the results of domestic violence could give rise to an inference of sex discrimination) Meister v Kansas City 2011 US Dist LEXIS 19166 19ndash20 (D Kan 2011) (ldquo[E]vidence that defendant knew that domestic violence caused damage to plaintiffrsquos housing unit would help support a claim that she was evicted under circumstances giving rise to an inference of sex discriminationrdquo) 63 See generally McDonnell Douglas Corp v Green 411 US 792 (1973) (articulating burden-shifting standard of proving intentional discrimination under Title VII) 64 See eg Lindsay v Yates 578 F3d at 415 (articulating that if plaintiff presents evidence from which a reasonable jury could conclude that there exists a prima facie case of housing discrimination then the burden shifts to the defendant to offer evidence of a legitimate nondiscriminatory reason for the adverse housing decision) Bouley 394 F Supp 2d at 678 (explaining that once a plaintiff has established a prima facie case of discrimination the burden then shifts to the defendant to assert a legitimate nondiscriminatory rationale for the challenged decision) 65 See eg Robinson v 12 Lofts Realty Inc 610 F2d 1032 1040 (2d Cir 1979) (ldquoA prima facie case having been established a Fair Housing Act claim cannot be defeated by a defendant which relies on merely hypothetical reasons for the plaintiffrsquos rejectionrdquo) 66 See eg Soules v US Deprsquot of Hous and Urban Dev 967 F2d 817 822 (2d Cir 1992) (ldquoIn examining the defendantrsquos reason we view skeptically subjective rationales concerning why he denied housing to members or protected groups Our reasoning in part is that lsquoclever men may easily conceal their [discriminatory] motivationsrsquordquo (quoting United States v City of Black Jack 508 F2d 1179 1185 (8th Cir 1974)))

If the defendant (or respondent in a HUD administrative enforcement action) establishes a legitimate nondiscriminatory reason for the adverse housing action a plaintiff or HUD may still prevail by showing that the proffered reason was not the true reason for the adverse housing decision and was instead a mere pretext for unlawful discrimination67 For example the fact that the defendant (or respondent) acted upon comparable nuisance or criminal conduct differently for one or more individuals of a different protected class than the plaintiff or complainant is strong evidence that the defendant (or respondent) was not considering such conduct uniformly Additionally shifting or inconsistent explanations offered by the defendant (or respondent) for the adverse housing action may provide evidence of pretext Similarly a local governmentrsquos claim that its nuisance citations would not cause tenant evictions because the citations were issued to the housing provider and not the residents could be evidence of pretext68

Ultimately the evidence that may be offered to show that defendantrsquos or respondentrsquos stated justification is pretext for intentional discrimination will depend on the facts of a particular case

V Assessment of Nuisance Ordinances and Crime-Free Housing Ordinances as Part of the Duty to Affirmatively Further Fair Housing

In addition to prohibiting discrimination the Fair Housing Act requires HUD to administer programs and activities relating to housing and urban development in a manner that affirmatively furthers the policies of the Act69 The purpose of the Actrsquos affirmatively furthering fair housing (AFFH) mandate is to ensure that recipients of Federal housing and urban development funds do more than simply not discriminate recipients also must take meaningful action to overcome fair housing issues and related barriers to fair housing choice and disparities in access to opportunity based on sex race national origin disability and other characteristics protected by the Act Congress has repeatedly reaffirmed the AFFH mandate by requiring HUD program participants to certify that they will affirmatively further fair housing as a condition of receiving Federal funds70

In 2015 HUD issued a rule on affirmatively furthering fair housing which requires grantees who receive Community Development Block Grant HOME Housing Opportunities for Persons with AIDS or Emergency Solutions Grant funding to conduct an assessment of fair housing for purposes of setting goals to affirmatively further fair housing In conducting their assessments of fair housing state and local governments should assess their nuisance ordinances crime-free housing ordinances and related policies or practices including the processes by which nuisance ordinance and crime-free housing ordinances are enforced and consider how these ordinances policies or practices may affect access to housing and access to police medical and other governmental services based on sex race national origin disability and other characteristics protected by the Act One step a local government may take toward meeting its duty to affirmatively further fair housing is to eliminate disparities by repealing a nuisance or

67 See eg Bouley 394 F Supp 2d at 678 68 See Hidden Vill 867 F Supp 2d at 952 (noting that ldquo[d]efendants appear blind to the possibility that repeatedly issuing citations to a landlord based upon the actions of its tenants would logically create an incentive for the landlord to evict his problem tenant produc[ing] the same resultmdashthe eviction of [predominantly African American youth] but by different meansrdquo) 69 42 USC sect 3608(d) (e)(5) 70 42 USC sectsect 5304(b)(2) 5306(d)(7)(B) 12705(b)(15) 1437C-1(d)(16)

crime-free ordinance that requires or encourages evictions for use of emergency services including 911 calls by domestic violence or other crime victims

VI Conclusion

The Fair Housing Act prohibits both intentional housing discrimination and housing ordinances policies or practices that have an unjustified discriminatory effect because of protected characteristics While the Act does not prohibit local governments from appropriately considering nuisance or criminal conduct when enacting laws related to housing governments should ensure that such ordinances and related policies or practices do not discriminate in violation of the Fair Housing Act

Eighty percent of domestic violence victims are women and in some communities racial or ethnic minorities are disproportionately victimized by crime Where the enforcement of a nuisance or crime-free ordinance penalizes individuals for use of emergency services or for being a victim of domestic violence or other crime a local government bears the burden of proving that any discriminatory effect caused by such policy or practice is supported by a legally sufficient justification Such a determination cannot be based on generalizations or stereotypes

Selective use of nuisance or criminal conduct as a pretext for unequal treatment of individuals based on protected characteristics violates the Act Repealing ordinances that deny access to housing by requiring or encouraging evictions or that create disparities in access to emergency services because of a protected characteristic is one step local governments can take to avoid Fair Housing Act violations and as part of a strategy to affirmatively further fair housing

Helen R Kanovsky General Counsel

6222018

Amy Schwartz-Wallace Esq Empire Justice Center

Marcie Kobak Esq Legal Services of the Hudson Valley 1

A Close Look at Housing andhellip Domestic Violence-Related Crimes Protections amp Challenges

6222018

DV-Related Anti-Discrimination and Anti-Eviction Protections in NY

bull DV advocate community seeking statewide housing-related anti-discrimination protections for many years bull Different bill vetoed by then Gov Paterson in 2010 (Veto Message 6760)

bull Part of the ldquoWomenrsquos Equality Agendardquo (WEA) package

bull Signed 102115 (L2015 ch366) and became effective 90 days later on 1192016 bull Adds new sections of Real Property Law sect227-d and RPAPL sect744

bull Protections are contained in the housing laws not in the Human Rights Law (SO no Division of Human Rights enforcement)

RPL 227-d Discrimination based on DV status is prohibited bull Discrimination based on domestic violence (DV) status is

prohibited

No person firm or corporation andor their agent owning or managing a building for dwelling purposes shall based on a person or family memberrsquos DV status

bull Refuse to rent to any person or family

bull Discriminate in the terms conditions or privileges of the rental or

bull Print or circulate any statement publication or advertisement which directly or indirectly expresses any limitation specification or discrimination

6222018

Definition of ldquoDomestic Violence Victimrdquo

bull A person or accompanying parent of a minor child who is or has been the victim of an act that

Constitutes a family offense pursuant to FCA sect812 (1) OR a violent felony offense pursuant to PL sect7002

Such act is alleged to have been committed by a member of that personrsquos same family or household pursuant to FCA sect812 (1)

Properties Not Subject to the Anti-Discrimination Protections

bull Only owner-occupied dwellings that have two or fewer residential units are not subject to the law

bull Law applies if

bull owner does not live there or

bull if place has more than 2 units

6222018

What the law does not barhellipor address bull Makes clear that landlords in public or private housing can

continue to

bull Create a rental preference for DV survivors

bull Provide assistance to DV survivors in obtaining and retaining rental housing

bull Respond to an inquiry or request by a DV victim

bull Does not provide ability to bifurcate joint tenancy (with abuser)

bull Important to remind LL and the court Similar to the need to make clear in the law that survivors cannot ldquoviolaterdquo an order of protection by contacting their abuser (FCA sectsect 842 and 846)

Local Laws amp Anti-Discrimination Protections bull Some municipalities already have local anti-discrimination

protections for DV victims (ie Monroe amp Westchester Counties)

bull Does not prohibit localities from retaining or promulgating local laws or ordinances imposing additional or enhanced protections prohibiting discrimination against victims of DV

bull Can keep existing law or pass news ones going farthermore protective

6222018

Prohibiting eviction based on DV status in RPAPL 744

bull A tenant shall not be evicted because of their DV status as defined in RPL 227-d

bull A defense to an eviction proceeding shall be that the landlord is attempting to recover possession due to the tenantrsquos status as a DV survivor

bull LL can rebut that defense by showing that they are seeking eviction for another lawful reason

Housing Provider Protections under 2015 Law bull Law not intended to restrict a LLrsquos legal rights to evict on

grounds not based on or derived from DV victim status

bull Not civilly liable to other tenants guests invitees or licensees arising from reasonable and good faith efforts to comply with the law

bull As with RPL LAW DOES NOT APPLY to owner occupied dwellings that have two or fewer residential units 10

6222018

Real Property Law 227-c (Early Lease Termination)

bull Allows DV survivor with any kind of Order of Protection to petition a court to be released from lease early without financial penalty

bull To qualify for relief bull Have OP (any kind) and be acting in good faith

bull First ask landlord for relief before commencing proceeding and be denied

bull Demonstrate that despite OP there is a continuing substantial risk and that relocation substantially reduces such risk

bull Rent obligations up to date

bull Notice

bull Empowers court to sever (bifurcate) joint tenancies

bull Not a quick fix given notice requirements and deadlines in law

What is a Nuisance Ordinance

bull Local law (ldquocrime free zonerdquo ldquono tolerance policyrdquo ldquonuisance lawrdquo)

bull Target calls for police service or any criminal activity occurring at property (rental or private commercial) bull Notice to LLproperty owners

bull Low evidentiary bar (ldquopreponderance of the evidencerdquo) for locality to show nuisance activity occurred

bull Designate rental property as nuisance

bull Rarely make allowancecarve out for crime victims or those who need for emergency aid

bull Penalties include criminal and civil fines revocation of rental permit condemnation unless landlord ldquoabatesrdquo or evictions

bull No notice to or process for tenants

6222018

Survey of Nuisance Ordinances Around NYS bull Widespread in New York even bigger than we know

bull A survey of the 21 most populous cities and 18 most populous towns in New York revealed that 25 (of 39) have nuisance ordinances that allow a city to deem a property a nuisance if it is associated with criminal behavior

bull Many localities in New York have ordinances that raise serious concerns about their constitutionality and potential harm to vulnerable communities These include but are not limited to

bull Babylon Binghamton Cheektowaga Fulton Greece New Hartford Niagara Falls Rochester Rome Schenectady Syracuse Troy Utica Village of Hempstead and Yonkers

Example City of Niagara Falls

bull Assesses points according to type of criminal activity

bull Once a property reaches 12 points within 6 months or 18 points within 12 months violation of ordinance

bull Triggering offenses like assault attempted assault sex offenses murder = 12 points

bull Includes complaints to law enforcement as acceptable evidence

bull No conviction required

bull No exception for people who need emergency assistance

6222018

Silenced How Nuisance Ordinances Punish Crime Victims in New York

(ACLU amp SSRC 2015)

6222018

Impacts on DV amp Other Crime Victims bull Silences victims and increases riskthreatens safety of victim family

community

bull No place safe to go in a community

bull Empowers and emboldens abusers

bull Housing insecurity and eviction (with little due process)

bull Undermines state or local law protections for victims (nuisance laws apply to LL-municipalities)mdashCatch 22

bull If LL loses rental permit victim out anyway

bull Undermines law enforcement response

bull Particular harm in DV cases people with disabilities people of color 17

Pirro v Village of Groton

bull In a May 2017 decision Pirro v Village of Groton the 3rd Department struck down the Village of Grotonrsquos Nuisance Law as unconstitutional under the First Amendment

bull The court found it unconstitutional because bull The ordinance ldquodeters tenants from seeking assistance from police by placing them at

risk of losing their homesrdquo 152 AD 3d at 157 and

bull Violated the First Amendment right to petition the government for redress of grievances including the right to make criminal complaints to the police

bull The court struck down the entire law because on its face it would chill people including domestic violence victims from reaching out for police assistance

bull Local law is now unenforceable in Village of Groton

Link to decision httpswwwacluorglegal-documentgroton-v-pirro-appellate-decision

6222018

A Look at Nuisance Ordinances amp the Rochester Area Grape v TownVillage of East Rochester Second Amended Complaint No 07 CV 6075 CJS (F) (WDNY July 6 2007) Simmons v City of Rochester No 612 CV 06705 CJS (WDNY Dec 12 2012) Alcorn v Muhammad 2017 NY Slip Op 27365

A Few Resources

bull httpswwwhudgovsitesdocumentsFINALNUISANCEORDGDNCEPDF (HUD Guidance on Fair Housing and Nuisance Ordinances)

bull httpsempirejusticeorgresources_postnuisance-ordinances-domestic-violence-resources (Empire Justice Center Nuisance Ordinance Resource Page)

bull httpswwwacluorgreportsilenced-how-nuisance-ordinances-punish-crime-victims-new-york (ACLUrsquos Silenced Report)

6222018

VAWA Defenses bull VAWA applies to Continuum of Care as well as public housing and Section 8

34 USC 12491 (a) (3)

bull VAWA protects victims of domestic violence dating violence sexual assault or stalking regardless of sex gender gender identity or sexual orientation 81 Fed Reg 80724 Nov 16 2016

bull VAWA protects tenantsparticipants who are ldquoaffiliated individualsrdquo of survivors of DV dating violence sexual assault or stalking Affiliated individuals are co-tenants and co-occupants spouses parents children and siblings 34 USC 12491 (a) (1) 24 CFR 52003

bull A PHA must provide a notice of rights and self-certification form with every proposed termination 34 USC 12491 (d) 24 CFR 52005

VAWA Defenses

bull A tenantparticipant seeking to raise a VAWA defense may self-certify 24 CFR 52007 (b)

bull If a PHA receives conflicting information it may request third-party verification This may be satisfied by a sworn statement from the tenant and a professional service provider ndash social worker therapist attorney 34 USC 12491 (c) (3) (c) (7) 24 CFR 52007 (b) (ii)

bull If a PHA has two tenants both of whom assert to be the victim and the other the perpetrator if there is an OOP against only one the PHA has to honor the OOP PIH notice 2017-08 51917

6222018

VAWA Defenses bull Tenants of federally subsidized housing cannot lose their subsidies or tenancies

ldquoon the basis or as a direct resultrdquo of DV sexual assault or stalking 34 USC 12491 (b) (1) 24 CFR 52005 (b)(1)

bull This includes ldquocriminal activity directly related tordquo DV 34 USC 12491 (b) (3) (A) 24 CFR 52005 (b) (2)

bull A housing provider cannot consider ldquoan incident of actual or threatenedrdquo DV a lease violation by the victim or good cause for termination of the victimrsquos assistance or tenancy 34 USC 12491 (b) (2)

bull However a PHA may evict if it determines there is an actual an imminent threat to employees or other tenants 34 USC 12491 (b) (3) (C) (iii) 23

Faculty Biographies

AMY SCHWARTZ-WALLACE

Amy Schwartz-Wallace is a Senior Attorney with the Empire Justice Center in Rochester where

she has overseen their statewide Domestic Violence practice for over 15 years In this position

she provides legal training and technical assistance to attorneys domestic violence programs

courts and other agencies and organizations statewide She engages in policy analysis and

legislative advocacy and her advocacy in these arenas has directly resulted in many domestic

violence-related law and policy changes on local state and national levels She has also

successfully represented victims in several cutting-edge impact litigation cases most notably the

Third Departmentrsquos 2010 amp 2011 decisions in Dickerson v Thompson which provided parties

with access to the New York Supreme Court for dissolution of their out-of-state civil unions

The Dickerson rulings changed the legal landscape in New York and have been widely cited as

precedent in other states as well as to 2nd

Circuit and the United States Supreme Court She also

jointly represented the plaintiff in Grape v TownVillage of East Rochester the first case

nationally to address the intersection of local nuisance ordinances and domestic violence As

amici to the 3rd

Department Amy also co-authored the brief in the Pirro v Village of Groton

case with the ACLU and the NYCLU Amicirsquos arguments helped the court understand that the

local nuisance ordinance should be invalidated on Constitutional grounds

From 2016-2018 Amy served as Co-Chair of the New York State Bar

AssociationWomenrsquos Bar Association of the State of New Yorkrsquos ground-breaking

statewide joint Presidentsrsquo initiative aimed at improving legal services for victims of

domestic violence

The author of numerous publications Amy also co-wrote the New York State Office for

the Prevention of Domestic Violencersquos GUIDING PRINCIPLES FOR COMMUNITY

DOMESTIC VIOLENCE POLICY

Amy has received numerous awards in recognition of her work over the years She is also

presently serving as Empire Justice Centerrsquos Interim Supervising Attorney

MARCIE KOBAK

Marcie Kobak is the Supervising Attorney for Litigation at Legal Services of the Hudson Valley

In addition to developing impact cases and overseeing litigation she handles multi-family

housing cases out of Legal Servicesrsquo Yonkers Office Marcie also assists consumers facing

creditor lawsuits primarily through the Westchester CLARO program Before coming to Legal

Services Marcie was a Deanrsquos Fellow at the Feerick Center for Social Justice at Fordham Law

School from which she was graduated in 2011 with honors She did internships with the New

Economy Project (formerly NEDAP) and with the New York State Division of Human Rights

and consultation work with Mobilization for Justice (formerly MFY) Marcie enjoys hiking

ANCA GRIGORE

Anca Grigore is a Senior Staff Attorney with the Civil Justice Practice of Brooklyn Defender

Services In this role she represents clients in cases involving housing shelter public benefits

civil forfeiture and any other civil consequences that may arise from an arrest Article 10 family

case or deportation proceedings

Anca grew up in South Florida as the child of immigrants and graduated from the University of

Florida After a brief stint working in non-profit development at Human Rights Watch she

attended George Washington University School of Law As a law student she interned with the

Public Defender Service Community Reentry Program The Legal Aid Society Harlem

Community Law Office and the Immigration Clinic at George Washington University Upon

graduation Anca completed a fellowship at Brooklyn Defender Services before she was hired on

LAUREN PRICE

Lauren Price is a Staff Attorney with the Civil Justice Practice of Brooklyn Defender Services

She represents clients in cases involving housing shelter public benefits civil forfeiture and

any other civil consequences that may arise from an arrest Article 10 family case or deportation

proceedings

Before joining BDS as a member of Brooklyn Law Schoolrsquos Public Interest Public Service

Fellowship program Lauren worked for two years in the Special Litigation Unit of the New

York Legal Assistance Group In this capacity she contributed to class actions and other cases

with potential to redress systemic harms suffered by low-income people in New York City

including challenges to deprivations of Medicaid-funded services and to special education

violations

As a law student Lauren interned with the Legal Aid Societyrsquos Brooklyn Neighborhood Office

Housing Unit South Brooklyn Legal Servicersquos Elder Law Unit and the Bronx Defenderrsquos Civil

Action Practice where she found her passion for working at the intersection of civil litigation

and criminal collateral consequences Lauren is a graduate of Brooklyn Law School and Boston

University

Notes Pages

print perforated - verification and evaluation forms

agenda in color

toc in color

1 in color

2 in color

3 in color

4 in color

5 in color

6 in color

7 in color

8 in color

9 in color

10 in color

bio page in color

Attendee Verification - collateralpdf

Please turn in this form at the end of the program with your program evaluation form

Blank Page

Notes Pages -6pdf

Notes Pages Cover

Notes Page with Logo

Notes Page


Notes Page


Notes Page

Blank Page

Program Name Collateral Consequences The Effects of (Alleged or Actual) Crimes on Stable Housing

Program Code THEA_4

Program Location Albany Capital Center

Program Date Thursday October 4 2018

Speaker Name 1 Amy Schwartz-Wallace

Speaker Name 2 Marcie Kobak

Speaker Name 3 Anca Grigore

Speaker Name 4 Lauren Price

Speaker Name 5

Speaker Name 6

Speaker Name 7

Speaker Name 8

Speaker Name 9

Speaker Name 10

Speaker Name 11

Speaker Name 12

Speaker Name 13

Speaker Name 14

Speaker Name 15

Speaker Name 16

Speaker Name 17

Speaker Name 18

Speaker Name 19

Speaker Name 20

Speaker Name 21

Speaker Name 22

Sponsored by the Committee on Legal Aid and the Committee on Continuing Legal Education of the New York State Bar Association

This program is offered for educational purposes

The views and opinions of the faculty expressed during this program are those of the presenters and authors of the materials Further the statements made by the faculty

during this program do not constitute legal advice

Copyright copy 2018

New York Rules of

NYSBA CLE

Program Name

Program Code

Program Location

Program Date

___________________________________________________________________________________________________________

n n n n n n n n

(please turn over)

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Marcie Kobak LSHV

Copyright copy 2018

DOCKET NO 523504

__________________________________________________________

-against-

TABLE OF CONTENTS

BACKGROUND 2

ARGUMENT 6

CONCLUSION 28

US Const amend I 13

24 CFR sect 100500 28

2013 NY Laws ch 480 (Nov 13 2013) 23

2015 NY Laws ch 366 (Oct 21 2015) 24

Other Authorities

BACKGROUND

ARGUMENT

MLTSPNSR

housing

Go to top

BILL NUMBER A6354B

TITLE OF BILL

SUMMARY OF BILL

EXISTING LAW

Property Law

BUDGET IMPLICATIONS

EFFECTIVE DATE

Go to top

A06354 Text

STATE OF NEW YORK

________________________________________________________________________

6354--B

Cal No 212

IN ASSEMBLY

March 20 2015

___________

BICHOTTE

committee

recommitted

amended

reading

housing

Assem-

section

prohibited

domes-

felony

family

twelve

committed

subdivision

prohibited

corporation

violence

brackets

LBD09563-

A 6354--B 2

refused

circu-

expresses

discrimi-

person

subdivision

damages

actions

attorneys

harass

promptly

learned

ability

corporation

domestic

dwelling

residential

42 units

licensees

47 section

person

dwelling

A 6354--B 3

munici-

imposing

against

diminish-

prohibited

violence

recover

recovery

recover

guests

dwelling

residential

27 units

members

cabinet

officials

president

speaker

Housing

modifi-

owners

portabil-

domestic

mobility

standard

recommen-

subdivi-

compe-

impair

opera-

A 6354--B 4

judgment

invalid

7 have become a law

2017 NY Slip Op 27365

201609424

Department

EVELYN FRAZEE J

BACKGROUND

authorized

nuisance

the Mayors designee

exists

safety

building

drug sales

on April 22 2016

DISCUSSION

by police officers

at the site

Constitution

CONCLUSION

Respondentv

________________________________

Respondentsand

Respondent________________________________

__________

-2- 523504

__________

Garry J

-3- 523504

-4- 523504

-5- 523504

-6- 523504

-7- 523504

-8- 523504

-9- 523504

-10- 523504

government

-11- 523504

-12- 523504

-13- 523504

SEPTEMBER 13 2016

Emergency Services

I Introduction

II Background

VI Conclusion

6222018

prohibited

6222018

bull Law applies if

6222018

continue to

6222018

bull Notice

6222018

community

6222018

A Few Resources

6222018

34 USC 12491 (a) (3)

VAWA Defenses

6222018

Faculty Biographies

amici to the 3rd

domestic violence

MARCIE KOBAK

ANCA GRIGORE

LAUREN PRICE

proceedings

violations

University

Notes Pages

agenda in color

toc in color

1 in color

2 in color

3 in color

4 in color

5 in color

6 in color

7 in color

8 in color

9 in color

10 in color

bio page in color


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Notes Pages -6pdf

Notes Pages Cover


Notes Page


Notes Page


Notes Page

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Program Code THEA_4







Speaker Name 5

Speaker Name 6

Speaker Name 7

Speaker Name 8

Speaker Name 9

Speaker Name 10

Speaker Name 11

Speaker Name 12

Speaker Name 13

Speaker Name 14

Speaker Name 15

Speaker Name 16

Speaker Name 17

Speaker Name 18

Speaker Name 19

Speaker Name 20

Speaker Name 21

Speaker Name 22

New York Rules of

NYSBA CLE

Program Name

Program Code

Program Location

Program Date

___________________________________________________________________________________________________________

n n n n n n n n

(please turn over)

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Marcie Kobak LSHV

Copyright copy 2018

DOCKET NO 523504

__________________________________________________________

-against-

TABLE OF CONTENTS

BACKGROUND 2

ARGUMENT 6

CONCLUSION 28

US Const amend I 13

24 CFR sect 100500 28

2013 NY Laws ch 480 (Nov 13 2013) 23

2015 NY Laws ch 366 (Oct 21 2015) 24

Other Authorities

BACKGROUND

ARGUMENT

MLTSPNSR

housing

Go to top

BILL NUMBER A6354B

TITLE OF BILL

SUMMARY OF BILL

EXISTING LAW

Property Law

BUDGET IMPLICATIONS

EFFECTIVE DATE

Go to top

A06354 Text

STATE OF NEW YORK

________________________________________________________________________

6354--B

Cal No 212

IN ASSEMBLY

March 20 2015

___________

BICHOTTE

committee

recommitted

amended

reading

housing

Assem-

section

prohibited

domes-

felony

family

twelve

committed

subdivision

prohibited

corporation

violence

brackets

LBD09563-

A 6354--B 2

refused

circu-

expresses

discrimi-

person

subdivision

damages

actions

attorneys

harass

promptly

learned

ability

corporation

domestic

dwelling

residential

42 units

licensees

47 section

person

dwelling

A 6354--B 3

munici-

imposing

against

diminish-

prohibited

violence

recover

recovery

recover

guests

dwelling

residential

27 units

members

cabinet

officials

president

speaker

Housing

modifi-

owners

portabil-

domestic

mobility

standard

recommen-

subdivi-

compe-

impair

opera-

A 6354--B 4

judgment

invalid

7 have become a law

2017 NY Slip Op 27365

201609424

Department

EVELYN FRAZEE J

BACKGROUND

authorized

nuisance

the Mayors designee

exists

safety

building

drug sales

on April 22 2016

DISCUSSION

by police officers

at the site

Constitution

CONCLUSION

Respondentv

________________________________

Respondentsand

Respondent________________________________

__________

-2- 523504

__________

Garry J

-3- 523504

-4- 523504

-5- 523504

-6- 523504

-7- 523504

-8- 523504

-9- 523504

-10- 523504

government

-11- 523504

-12- 523504

-13- 523504

SEPTEMBER 13 2016

Emergency Services

I Introduction

II Background

VI Conclusion

6222018

prohibited

6222018

bull Law applies if

6222018

continue to

6222018

bull Notice

6222018

community

6222018

A Few Resources

6222018

34 USC 12491 (a) (3)

VAWA Defenses

6222018

Faculty Biographies

amici to the 3rd

domestic violence

MARCIE KOBAK

ANCA GRIGORE

LAUREN PRICE

proceedings

violations

University

Notes Pages

agenda in color

toc in color

1 in color

2 in color

3 in color

4 in color

5 in color

6 in color

7 in color

8 in color

9 in color

10 in color

bio page in color


Blank Page

Notes Pages -6pdf

Notes Pages Cover


Notes Page


Notes Page


Notes Page

Blank Page


Program Code THEA_4







Speaker Name 5

Speaker Name 6

Speaker Name 7

Speaker Name 8

Speaker Name 9

Speaker Name 10

Speaker Name 11

Speaker Name 12

Speaker Name 13

Speaker Name 14

Speaker Name 15

Speaker Name 16

Speaker Name 17

Speaker Name 18

Speaker Name 19

Speaker Name 20

Speaker Name 21

Speaker Name 22

New York Rules of

NYSBA CLE

Program Name

Program Code

Program Location

Program Date

___________________________________________________________________________________________________________

n n n n n n n n

(please turn over)

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Marcie Kobak LSHV

DOCKET NO 523504

__________________________________________________________

-against-

TABLE OF CONTENTS

BACKGROUND 2

ARGUMENT 6

CONCLUSION 28

US Const amend I 13

24 CFR sect 100500 28

2013 NY Laws ch 480 (Nov 13 2013) 23

2015 NY Laws ch 366 (Oct 21 2015) 24

Other Authorities

BACKGROUND

ARGUMENT

MLTSPNSR

housing

Go to top

BILL NUMBER A6354B

TITLE OF BILL

SUMMARY OF BILL

EXISTING LAW

Property Law

BUDGET IMPLICATIONS

EFFECTIVE DATE

Go to top

A06354 Text

STATE OF NEW YORK

________________________________________________________________________

6354--B

Cal No 212

IN ASSEMBLY

March 20 2015

___________

BICHOTTE

committee

recommitted

amended

reading

housing

Assem-

section

prohibited

domes-

felony

family

twelve

committed

subdivision

prohibited

corporation

violence

brackets

LBD09563-

A 6354--B 2

refused

circu-

expresses

discrimi-

person

subdivision

damages

actions

attorneys

harass

promptly

learned

ability

corporation

domestic

dwelling

residential

42 units

licensees

47 section

person

dwelling

A 6354--B 3

munici-

imposing

against

diminish-

prohibited

violence

recover

recovery

recover

guests

dwelling

residential

27 units

members

cabinet

officials

president

speaker

Housing

modifi-

owners

portabil-

domestic

mobility

standard

recommen-

subdivi-

compe-

impair

opera-

A 6354--B 4

judgment

invalid

7 have become a law

2017 NY Slip Op 27365

201609424

Department

EVELYN FRAZEE J

BACKGROUND

authorized

nuisance

the Mayors designee

exists

safety

building

drug sales

on April 22 2016

DISCUSSION

by police officers

at the site

Constitution

CONCLUSION

Respondentv

________________________________

Respondentsand

Respondent________________________________

__________

-2- 523504

__________

Garry J

-3- 523504

-4- 523504

-5- 523504

-6- 523504

-7- 523504

-8- 523504

-9- 523504

-10- 523504

government

-11- 523504

-12- 523504

-13- 523504

SEPTEMBER 13 2016

Emergency Services

I Introduction

II Background

VI Conclusion

6222018

prohibited

6222018

bull Law applies if

6222018

continue to

6222018

bull Notice

6222018

community

6222018

A Few Resources

6222018

34 USC 12491 (a) (3)

VAWA Defenses

6222018

Faculty Biographies

amici to the 3rd

domestic violence

MARCIE KOBAK

ANCA GRIGORE

LAUREN PRICE

proceedings

violations

University

Notes Pages

agenda in color

toc in color

1 in color

2 in color

3 in color

4 in color

5 in color

6 in color

7 in color

8 in color

9 in color

10 in color

bio page in color


Blank Page

Notes Pages -6pdf

Notes Pages Cover


Notes Page


Notes Page


Notes Page

Blank Page


Program Code THEA_4







Speaker Name 5

Speaker Name 6

Speaker Name 7

Speaker Name 8

Speaker Name 9

Speaker Name 10

Speaker Name 11

Speaker Name 12

Speaker Name 13

Speaker Name 14

Speaker Name 15

Speaker Name 16

Speaker Name 17

Speaker Name 18

Speaker Name 19

Speaker Name 20

Speaker Name 21

Speaker Name 22

NYSBA CLE

Program Name

Program Code

Program Location

Program Date

___________________________________________________________________________________________________________

n n n n n n n n

(please turn over)

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Marcie Kobak LSHV

DOCKET NO 523504

__________________________________________________________

-against-

TABLE OF CONTENTS

BACKGROUND 2

ARGUMENT 6

CONCLUSION 28

US Const amend I 13

24 CFR sect 100500 28

2013 NY Laws ch 480 (Nov 13 2013) 23

2015 NY Laws ch 366 (Oct 21 2015) 24

Other Authorities

BACKGROUND

ARGUMENT

MLTSPNSR

housing

Go to top

BILL NUMBER A6354B

TITLE OF BILL

SUMMARY OF BILL

EXISTING LAW

Property Law

BUDGET IMPLICATIONS

EFFECTIVE DATE

Go to top

A06354 Text

STATE OF NEW YORK

________________________________________________________________________

6354--B

Cal No 212

IN ASSEMBLY

March 20 2015

___________

BICHOTTE

committee

recommitted

amended

reading

housing

Assem-

section

prohibited

domes-

felony

family

twelve

committed

subdivision

prohibited

corporation

violence

brackets

LBD09563-

A 6354--B 2

refused

circu-

expresses

discrimi-

person

subdivision

damages

actions

attorneys

harass

promptly

learned

ability

corporation

domestic

dwelling

residential

42 units

licensees

47 section

person

dwelling

A 6354--B 3

munici-

imposing

against

diminish-

prohibited

violence

recover

recovery

recover

guests

dwelling

residential

27 units

members

cabinet

officials

president

speaker

Housing

modifi-

owners

portabil-

domestic

mobility

standard

recommen-

subdivi-

compe-

impair

opera-

A 6354--B 4

judgment

invalid

7 have become a law

2017 NY Slip Op 27365

201609424

Department

EVELYN FRAZEE J

BACKGROUND

authorized

nuisance

the Mayors designee

exists

safety

building

drug sales

on April 22 2016

DISCUSSION

by police officers

at the site

Constitution

CONCLUSION

Respondentv

________________________________

Respondentsand

Respondent________________________________

__________

-2- 523504

__________

Garry J

-3- 523504

-4- 523504

-5- 523504

-6- 523504

-7- 523504

-8- 523504

-9- 523504

-10- 523504

government

-11- 523504

-12- 523504

-13- 523504

SEPTEMBER 13 2016

Emergency Services

I Introduction

II Background

VI Conclusion

6222018

prohibited

6222018

bull Law applies if

6222018

continue to

6222018

bull Notice

6222018

community

6222018

A Few Resources

6222018

34 USC 12491 (a) (3)

VAWA Defenses

6222018

Faculty Biographies

amici to the 3rd

domestic violence

MARCIE KOBAK

ANCA GRIGORE

LAUREN PRICE

proceedings

violations

University

Notes Pages

agenda in color

toc in color

1 in color

2 in color

3 in color

4 in color

5 in color

6 in color

7 in color

8 in color

9 in color

10 in color

bio page in color


Blank Page

Notes Pages -6pdf

Notes Pages Cover


Notes Page


Notes Page


Notes Page

Blank Page


Program Code THEA_4







Speaker Name 5

Speaker Name 6

Speaker Name 7

Speaker Name 8

Speaker Name 9

Speaker Name 10

Speaker Name 11

Speaker Name 12

Speaker Name 13

Speaker Name 14

Speaker Name 15

Speaker Name 16

Speaker Name 17

Speaker Name 18

Speaker Name 19

Speaker Name 20

Speaker Name 21

Speaker Name 22

NYSBA CLE

Program Name

Program Code

Program Location

Program Date

___________________________________________________________________________________________________________

n n n n n n n n

(please turn over)

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Marcie Kobak LSHV

DOCKET NO 523504

__________________________________________________________

-against-

TABLE OF CONTENTS

BACKGROUND 2

ARGUMENT 6

CONCLUSION 28

US Const amend I 13

24 CFR sect 100500 28

2013 NY Laws ch 480 (Nov 13 2013) 23

2015 NY Laws ch 366 (Oct 21 2015) 24

Other Authorities

BACKGROUND

ARGUMENT

MLTSPNSR

housing

Go to top

BILL NUMBER A6354B

TITLE OF BILL

SUMMARY OF BILL

EXISTING LAW

Property Law

BUDGET IMPLICATIONS

EFFECTIVE DATE

Go to top

A06354 Text

STATE OF NEW YORK

________________________________________________________________________

6354--B

Cal No 212

IN ASSEMBLY

March 20 2015

___________

BICHOTTE

committee

recommitted

amended

reading

housing

Assem-

section

prohibited

domes-

felony

family

twelve

committed

subdivision

prohibited

corporation

violence

brackets

LBD09563-

A 6354--B 2

refused

circu-

expresses

discrimi-

person

subdivision

damages

actions

attorneys

harass

promptly

learned

ability

corporation

domestic

dwelling

residential

42 units

licensees

47 section

person

dwelling

A 6354--B 3

munici-

imposing

against

diminish-

prohibited

violence

recover

recovery

recover

guests

dwelling

residential

27 units

members

cabinet

officials

president

speaker

Housing

modifi-

owners

portabil-

domestic

mobility

standard

recommen-

subdivi-

compe-

impair

opera-

A 6354--B 4

judgment

invalid

7 have become a law

2017 NY Slip Op 27365

201609424

Department

EVELYN FRAZEE J

BACKGROUND

authorized

nuisance

the Mayors designee

exists

safety

building

drug sales

on April 22 2016

DISCUSSION

by police officers

at the site

Constitution

CONCLUSION

Respondentv

________________________________

Respondentsand

Respondent________________________________

__________

-2- 523504

__________

Garry J

-3- 523504

-4- 523504

-5- 523504

-6- 523504

-7- 523504

-8- 523504

-9- 523504

-10- 523504

government

-11- 523504

-12- 523504

-13- 523504

SEPTEMBER 13 2016

Emergency Services

I Introduction

II Background

VI Conclusion

6222018

prohibited

6222018

bull Law applies if

6222018

continue to

6222018

bull Notice

6222018

community

6222018

A Few Resources

6222018

34 USC 12491 (a) (3)

VAWA Defenses

6222018

Faculty Biographies

amici to the 3rd

domestic violence

MARCIE KOBAK

ANCA GRIGORE

LAUREN PRICE

proceedings

violations

University

Notes Pages

agenda in color

toc in color

1 in color

2 in color

3 in color

4 in color

5 in color

6 in color

7 in color

8 in color

9 in color

10 in color

bio page in color


Blank Page

Notes Pages -6pdf

Notes Pages Cover


Notes Page


Notes Page


Notes Page

Blank Page


Program Code THEA_4







Speaker Name 5

Speaker Name 6

Speaker Name 7

Speaker Name 8

Speaker Name 9

Speaker Name 10

Speaker Name 11

Speaker Name 12

Speaker Name 13

Speaker Name 14

Speaker Name 15

Speaker Name 16

Speaker Name 17

Speaker Name 18

Speaker Name 19

Speaker Name 20

Speaker Name 21

Speaker Name 22

Program Name

Program Code

Program Location

Program Date

___________________________________________________________________________________________________________

n n n n n n n n

(please turn over)

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Marcie Kobak LSHV

DOCKET NO 523504

__________________________________________________________

-against-

TABLE OF CONTENTS

BACKGROUND 2

ARGUMENT 6

CONCLUSION 28

US Const amend I 13

24 CFR sect 100500 28

2013 NY Laws ch 480 (Nov 13 2013) 23

2015 NY Laws ch 366 (Oct 21 2015) 24

Other Authorities

BACKGROUND

ARGUMENT

MLTSPNSR

housing

Go to top

BILL NUMBER A6354B

TITLE OF BILL

SUMMARY OF BILL

EXISTING LAW

Property Law

BUDGET IMPLICATIONS

EFFECTIVE DATE

Go to top

A06354 Text

STATE OF NEW YORK

________________________________________________________________________

6354--B

Cal No 212

IN ASSEMBLY

March 20 2015

___________

BICHOTTE

committee

recommitted

amended

reading

housing

Assem-

section

prohibited

domes-

felony

family

twelve

committed

subdivision

prohibited

corporation

violence

brackets

LBD09563-

A 6354--B 2

refused

circu-

expresses

discrimi-

person

subdivision

damages

actions

attorneys

harass

promptly

learned

ability

corporation

domestic

dwelling

residential

42 units

licensees

47 section

person

dwelling

A 6354--B 3

munici-

imposing

against

diminish-

prohibited

violence

recover

recovery

recover

guests

dwelling

residential

27 units

members

cabinet

officials

president

speaker

Housing

modifi-

owners

portabil-

domestic

mobility

standard

recommen-

subdivi-

compe-

impair

opera-

A 6354--B 4

judgment

invalid

7 have become a law

2017 NY Slip Op 27365

201609424

Department

EVELYN FRAZEE J

BACKGROUND

authorized

nuisance

the Mayors designee

exists

safety

building

drug sales

on April 22 2016

DISCUSSION

by police officers

at the site

Constitution

CONCLUSION

Respondentv

________________________________

Respondentsand

Respondent________________________________

__________

-2- 523504

__________

Garry J

-3- 523504

-4- 523504

-5- 523504

-6- 523504

-7- 523504

-8- 523504

-9- 523504

-10- 523504

government

-11- 523504

-12- 523504

-13- 523504

SEPTEMBER 13 2016

Emergency Services

I Introduction

II Background

VI Conclusion

6222018

prohibited

6222018

bull Law applies if

6222018

continue to

6222018

bull Notice

6222018

community

6222018

A Few Resources

6222018

34 USC 12491 (a) (3)

VAWA Defenses

6222018

Faculty Biographies

amici to the 3rd

domestic violence

MARCIE KOBAK

ANCA GRIGORE

LAUREN PRICE

proceedings

violations

University

Notes Pages

agenda in color

toc in color

1 in color

2 in color

3 in color

4 in color

5 in color

6 in color

7 in color

8 in color

9 in color

10 in color

bio page in color


Blank Page

Notes Pages -6pdf

Notes Pages Cover


Notes Page


Notes Page


Notes Page

Blank Page


Program Code THEA_4







Speaker Name 5

Speaker Name 6

Speaker Name 7

Speaker Name 8

Speaker Name 9

Speaker Name 10

Speaker Name 11

Speaker Name 12

Speaker Name 13

Speaker Name 14

Speaker Name 15

Speaker Name 16

Speaker Name 17

Speaker Name 18

Speaker Name 19

Speaker Name 20

Speaker Name 21

Speaker Name 22

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Additional comments

____________________________________________________________________________________________________________

Marcie Kobak LSHV

DOCKET NO 523504

__________________________________________________________

-against-

TABLE OF CONTENTS

BACKGROUND 2

ARGUMENT 6

CONCLUSION 28

US Const amend I 13

24 CFR sect 100500 28

2013 NY Laws ch 480 (Nov 13 2013) 23

2015 NY Laws ch 366 (Oct 21 2015) 24

Other Authorities

BACKGROUND

ARGUMENT

MLTSPNSR

housing

Go to top

BILL NUMBER A6354B

TITLE OF BILL

SUMMARY OF BILL

EXISTING LAW

Property Law

BUDGET IMPLICATIONS

EFFECTIVE DATE

Go to top

A06354 Text

STATE OF NEW YORK

________________________________________________________________________

6354--B

Cal No 212

IN ASSEMBLY

March 20 2015

___________

BICHOTTE

committee

recommitted

amended

reading

housing

Assem-

section

prohibited

domes-

felony

family

twelve

committed

subdivision

prohibited

corporation

violence

brackets

LBD09563-

A 6354--B 2

refused

circu-

expresses

discrimi-

person

subdivision

damages

actions

attorneys

harass

promptly

learned

ability

corporation

domestic

dwelling

residential

42 units

licensees

47 section

person

dwelling

A 6354--B 3

munici-

imposing

against

diminish-

prohibited

violence

recover

recovery

recover

guests

dwelling

residential

27 units

members

cabinet

officials

president

speaker

Housing

modifi-

owners

portabil-

domestic

mobility

standard

recommen-

subdivi-

compe-

impair

opera-

A 6354--B 4

judgment

invalid

7 have become a law

2017 NY Slip Op 27365

201609424

Department

EVELYN FRAZEE J

BACKGROUND

authorized

nuisance

the Mayors designee

exists

safety

building

drug sales

on April 22 2016

DISCUSSION

by police officers

at the site

Constitution

CONCLUSION

Respondentv

________________________________

Respondentsand

Respondent________________________________

__________

-2- 523504

__________

Garry J

-3- 523504

-4- 523504

-5- 523504

-6- 523504

-7- 523504

-8- 523504

-9- 523504

-10- 523504

government

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SEPTEMBER 13 2016

Emergency Services

I Introduction

II Background

VI Conclusion

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prohibited

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bull Law applies if

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continue to

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bull Notice

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community

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A Few Resources

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34 USC 12491 (a) (3)

VAWA Defenses

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Faculty Biographies

amici to the 3rd

domestic violence

MARCIE KOBAK

ANCA GRIGORE

LAUREN PRICE

proceedings

violations

University

Notes Pages

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Notes Pages -6pdf

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Documents

Collateral Consequences: The Effects of (Alleged or Actual