NYC Bill Would Make It Harder for Cops to Shut Down 'Nuisance' Businesses

The new legislation would "protect New Yorkers from unnecessarily losing their homes and businesses," says one Brooklyn councilman.

NEW YORK, NY — New York City Council Speaker Melissa Mark-Viverito, along with 11 councilmembers including Stephen Levin (Greenpoint, Williamsburg, DUMBO, Brooklyn Heights, Downtown Brooklyn, Boerum Hill) and Jumaane Williams (Flatbush, East Flatbush, Flatlands) last week announced the introduction of the Nuisance Abatement Fairness Act (NAFA), a package of bills that would reform New York City’s Nuisance Abatement Law (NAL).

Created in 1977, the law established a legal framework which permits the city to expeditiously shut down residential and commercial establishments that are deemed to be “nuisances.” Originally designed to address obscenity and prostitution in Times Square, the law has more recently been targeted at residences in which drug sales are allegedly occurring, or at commercial establishments that allegedly sell alcohol to minors.

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“For too long the Nuisance Abatement Law has been unevenly applied," Mark-Viverito said. "This package of legislation will reform these laws to eliminate the most draconian penalties, and limit its application to ensure that innocent people do not lose their homes or businesses — all while still permitting the swift shuttering of illegal houses of prostitution, bodegas that sell K2 and other actual nuisances where appropriate."

"This City Council has been proud to boldly take on criminal justice reform and this legislative package will continue our efforts,” the council's speaker said.

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Williams, representing Brooklyn's Flatbush neighborhood, said: “The application of the Nuisance Abatement Law has been abused and doesn’t allow for fair due process because of the uneven enforcement of the law. It is time the City Council reforms this law to crackdown on the abuses that result from its unintended use, and protect New Yorkers from unnecessarily losing their homes and businesses."

And Levin, representing northwest Brooklyn, said: “Our laws reflect our ideals. This package of bills realigns our legal system with our commitments to justice and fairness. As was too often the case, Nuisance Abatement Law oversights and abuse led to unjustified loss of homes or shuttering of businesses. I am proud to stand with my Council colleagues in support of this measure furthering community protections.”

The Nuisance Abatement Fairness Act consists of 13 piece of legislation. They will:

• Eliminate ex parte orders. The law currently allows judges to order the closure of a home or business based solely on the allegations of the NYPD, without affording the defendant the opportunity to be heard. These orders are disproportionately harsh and unnecessary. The legislation will permit a business or residence to be closed pending the outcome of a case only after defendants are notified and may appear in court.

• Repeal the Padlock Law. The Padlock Law permits the NYPD to close a residence or business without any judicial order. The NYPD has not used this draconian remedy for more than 15 years, and this bill will permanently abolish it.

• Narrow drug cases to sale. The law currently defines a nuisance as either the possession or sale of drugs, including marijuana. This legislation will restrict the application of the NAL to only the sale and not the possession of drugs. The bill will also require 4 drug sales instead of 3 to establish a “nuisance.”

• Address alcohol sales to minors. The law currently requires only 1 incident of an alcohol sale to a minor, even where such a sale was not intentional. This bill would restrict the application of the NAL to repeated, willful, and flagrant cases, and require 4 such incidents to establish a “nuisance.”

• Require laboratory reports for all drug cases. This bill addresses documented issues of NAL cases based on substances that turn out not to be controlled substances, by requiring the NYPD to submit laboratory results in all drug NAL cases.

• Address drug sales. Many drug NAL cases rely on “confidential informants” who may not be reliable, and an NAL case could be filed after a search warrant was executed and revealed only evidence of possession and not the sale of drugs. The NAL was not designed to circumvent the warrant system in criminal court, and this bill would require any drug sale nuisance case to have at least one incident personally witnessed by a police officer, eliminating the ability to file NAL cases based solely on information from “confidential informants.”

• Ensure the timeliness of NAL cases. There is no statute of limitations for many NAL cases, allowing residences and businesses to be shut down for incidents that occurred many months ago and have since been cured. This legislation will establish a 4 month statute of limitations for all NAL cases, and 90 days for drug cases. The legislation will also eliminate unused NAL provisions which are addressed through other enforcement mechanisms, including those that apply to obscenity, building code violations, air pollution, noise control, and zoning violations. The bill will also require NAL orders to be executed within 15 days of being signed by a judge.

• Prohibit sealed records and require personal service of legal papers. Media reports have indicated that records from sealed criminal cases have been used in NAL applications. This legislation would require the Law Department to check every NAL case to make sure no sealed records are being used. It would also require the personal service of legal papers to ensure defendants are properly notified.

• Require less restrictive remedies and awareness. Some NAL orders or dispositions are disproportionately harsh, requiring either closure or onerous conditions that are not necessary to solve the problem, and other NAL cases affect the property rights of those who had no knowledge or reason to know about any illicit activities. This legislation will restrict any NAL remedy to only the least restrictive remedy, meaning that a judge could evict a person or shutter a residence only if there were no other means of ceasing the nuisance. This bill would also prohibit the NAL from restricting the rights of any person who was not aware or had no reason to be aware of a nuisance.

• Prohibit permanent exclusions. Some NAL cases permanently restrict persons from certain property, eliminating any chance of rehabilitation and family reunification. This legislation will establish a time limit for the exclusion of any person from a residence to 1 year, or 3 years in special circumstances.

• Verify an on-going nuisance. Residences and businesses may be shut down for incidents that occurred many months ago and have since been cured, negating the reason behind the NAL in the first place. This legislation would require the NYPD to verify the ongoing nature of a nuisance before executing any order.

• Eliminate conflicting proceedings. NAL actions often duplicate similar proceedings in NYCHA, housing court, or pursuant to the Alcoholic Beverage Control laws. This is inefficient and can lead to double-punishment. This legislation would prohibit an NAL case where there is a duplicate NYCHA, Housing Court, Alcoholic Beverage Control, or other duplicate proceeding.

• Ensure comprehensive reporting. NAL data has historically not been collected. This legislation would require comprehensive reporting on the NYPD’s use of the NAL, including the rate of the use of injunctive relief, the relationship between NAL actions and 311 or 911 calls, the rate of NAL actions by precinct, and the relationship between NAL actions and other legal proceedings. Also, because other agencies and governmental entities can request NAL actions be brought, the bill also requires the Law Department to report on the wider use of the NAL.

The package of 13 bills will be heard by the City Council Public Safety Committee at 10 a.m. on Nov. 2 at City Hall.

A version of this article originally appeared on the Kings County Politics news site. Lead photo courtesy of Kings County Politics