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Law of Offices of McCulloh & Kelliher - Divorce Lawyer and Criminal Lawyer

Our West Babylon
Law Office is located at:
868 Little East Neck Road
West Babylon, New York 11704
631-422-1500

Our Saint James
Law Office is located at:
220 Lake Avenue
Saint James, New York 11780
631-629-5529

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William C. McCulloh, Esq., is a retired New York City Police Department Lieutenant with over 24 years in Legal and Law Enforcement experience. He worked at the Civil Enforcement Unit for several years as an Attorney and a supervisor enforcing the nuisance abatement laws which permitted the NYPD to close establishments including nightclubs, restaurants, bars, and grocery stores which were in violation of the Alcohol Beverage Compliance Laws. As an experienced former NYPD nuisance abatement enforcer/litigator Mr. McCulloh is very familiar with the nuisance abatement laws and the closure process of licensed establishments.

Typical nuisance abatement cases and New York State Liquor Authority violations

UNLICENSED PREMISES AND SALE TO MINOR

  • A premises that is not properly licensed or is unlicensed by the New York State Liquor Authority.
    • Charges can be brought under the Nuisance Abatement Law.
    • Proceedings by the New York State Liquor Authority may result in a loss of the liquor license as well as a civil penalty
  • A premises that sells alcohol to a person under the age of 21. The sale may be to a police cadet or a civilian under 21 years old.
    • Charges can be brought under the Nuisance Abatement Law.
    • Proceedings brought by the New York State Liquor Authority may result in a loss of the liquor license as well as a civil penalty.

MARCH (Multi-Agency Response to Community Hotspots).

  • A premises that has been cited by the local precinct for various violations.
  • A premises receives complaints for overcrowding.
  • Numerous complaints by the neighborhood and community board.
  • Several city and state agencies enter premises and issue summonses for various violations. Both in criminal court and administrative hearings.
    • Health Department, Fire Department, ECB, Building Department, Police Department, Liquor Authority.

LANDLORD RESPONSIBILITY

  • A landlord could be responsible for any illegal/unlawful conduct occurring on his/her property even without having actual knowledge of the conduct. See, § 7-706(f) & (g).
    • The landlord can be civilly fined.
    • If the issues cannot be resolved, the landlord’s property may be forfeited through federal laws.

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How we can help you after you receive NYS Liquor Authority violations or other city and state agency violations or summonses.

The Law Offices of William C. McCulloh can provide you with invaluable legal advice and assistance subsequent to your premises receiving summonses from the police department, or violations from the State Liquor Authority or other city and state agencies. We will also strive to prepare you for the future. Through our law enforcement and legal experience, we know that there will be future visits by these agencies. You need to be prepared for these surprise inspections. Anymore violations could mean a large civil penalty, the loss of a liquor license or even worse – the permanent closure of your premises or business.

Are you aware that a licensed premises can be issued violations for not posting the proper signs or if the exit signs are not illuminated or if liquor bottles contain “fruit flies” or if there are no paper towels or soap by the sink? Are you aware that a business can be fined and closed if there is illegal activity occurring on the premises even without the owner’s knowledge?

The Law Offices of William C. McCulloh can provide legal services in Criminal Court, at the New York State Liquor Authority and at other city or state agencies for any violations or summonses that your business has received. We can also assist you in Civil Court for a closure of a licensed premises by the New York City Police Department or by the New York State Liquor Authority.

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New York City Nuisance Abatement Laws

The New York City Police Department has been using an Administrative Code referred to as the Nuisance Abatement Laws to seize land used for illegal and unlawful activity. The Nuisance Abatement Laws were intended to target those property locations where criminal activity occurred in flagrant violation of drug laws. The Police stated that both public safety and property values were being endangered. The police have been using these laws to close any properties or businesses where there may have been serious drug violations or other illegal/unlawful activity over a period of time.

New York City Administrative Code

1§ 7-701 Legislative declaration.

The council of the city of New York finds that public nuisances exist in the city of New York in the operation of certain commercial establishments and the use or alteration of property in flagrant violation of the building code, zoning resolution, health laws, multiple dwelling law, penal laws regulating obscenity, prostitution and related conduct, licensing laws, environmental laws, laws relating to the sale and consumption of alcoholic beverages, laws relating to gambling, controlled substances and dangerous drugs and penal laws relating to the possession of stolen property, all of which interfere with the interest of the public in the quality of life and total community environment, the tone of commerce in the city, property values and the public health, safety, and welfare; the council further finds that the continued occurrence of such activities and violations is detrimental to the health, safety, and welfare of the people of the city of New York and of the businesses thereof and visitors thereto. It is the purpose of the council to create one standardized procedure for securing legal and equitable remedies relating to the subject matter encompassed by this law, without prejudice to the use of procedures available under existing and subsequently enacted laws, and to strengthen existing laws on the subject.

The Police Department’s Civil Enforcement Unit (CEU) employs several attorneys and police officers to address those locations that have “Quality of Life” complaints against them. CEU works hand in hand with the local precincts to secure evidence against these locations. Once the evidence has been gathered and proof established that there are illegal activities taking place in the premises, the CEU attorneys commence a civil action under the Nuisance Abatement Law.

New York City Administrative Code

1§ 7-703 Public nuisance defined.

The following are declared to be public nuisances:
  • Any building, erection or place, including one- or two-family dwellings, used for the purpose of prostitution as defined in section 230.00 of the penal law. Two or more criminal convictions of persons for acts of prostitution in the building, erection or place, including one- or two-family dwellings, within the one-year period preceding the commencement of an action under this chapter, shall be presumptive evidence that the building, erection or place, including one- or two-family dwellings, is a public nuisance. In any action under this subdivision, evidence of the common fame and general reputation of the building, erection or place, including one- or two-family dwellings, of the inmates or occupants thereof, or of those resorting thereto, shall be competent evidence to prove the existence of the public nuisance. If evidence of the general reputation of the building, erection or place, including one- or two-family dwellings, or of the inmates or occupants thereof, is sufficient to establish the existence of the public nuisance, it shall be prima facie evidence of knowledge thereof and acquiescence and participation therein and responsibility for the nuisance, on the part of the owners, lessors, lessees and all those in possession of or having charge of, as agent or otherwise, or having any interest in any form in the property, real or personal, used in conducting or maintaining the public nuisance;
  • Any building, erection or place, including one- or two-family dwellings, used for the purpose of obscene performances. The term “obscene” shall have the same meaning as that term is defined in subdivision one of section 235.00 of the penal law. The term “performance” shall have the same meaning as that term is defined in subdivision three of section 235.00 of the penal law. Two or more convictions, as defined in subdivision thirteen of section 1.20 of the criminal procedure law, of persons for production, presentation or direction of an obscene performance or for participation in such performance, in the building, erection or place, including one- or two-family dwellings, within the one-year period preceding the commencement of an action under this chapter, shall be presumptive evidence that the building, erection or place, including one- or two-family dwellings, is a public nuisance;
  • Any building, erection or place, including one- or two-family dwellings, used for the purpose of promotion of obscene material. The term “obscene” shall have the same meaning as that term is defined in subdivision one of section 235.00 of the penal law. The term “material” shall have the same meaning as that term is defined in subdivision two of section 235.00 of the penal law. Two or more convictions, as defined in subdivision thirteen of section 1.20 of the criminal procedure law, of persons for promotion of or possession with intent to promote obscene material in the building, erection or place, including one- or two-family dwellings, within the one-year period preceding the commencement of an action under this chapter, shall be presumptive evidence that the building, erection or place, including one- or two-family dwellings, is a public nuisance;
  • Any building, erection or place, other than a one-or two-family dwelling classified in occupancy group J-3 pursuant to section 27-237 of this code, which is in violation of article five of subchapter two of chapter one of title twenty-six or of article three, four, six, ten, twenty-two or twenty-four of subchapter one of chapter one of title twenty-seven of this code. A conviction, as defined in subdivision thirteen of section 1.20 of the criminal procedure law, of persons for offenses, as defined in subdivision one of section 10.00 of the penal law, in violation of the aforesaid provisions of this code in the building, erection or place, including one- or two-family dwellings, within the period of one-year preceding the commencement of an action under this chapter, shall be presumptive evidence that the building, erection or place, including one- or two-family dwellings, is a public nuisance;
  • Any building, erection or place, other than a one-or two-family dwelling classified in occupancy group J-3 pursuant to section 27-237 of this code, which is a nuisance as defined in section 17-142 of this code or which is an infected and uninhabitable house as defined in section 17-159 of this code or which is in violation of subdivision two of section 16-118 of this code;
  • Any building, erection or place, including one- or two-family dwellings, used for the purpose of a business, activity or enterprise which is not licensed as required by law;
  • Any building, erection or place, including one- or two-family dwellings, wherein, within the period of one year prior to the commencement of an action under this chapter, there have occurred three or more violations of any of the provisions of article two hundred twenty, two hundred twenty-one or two hundred twenty-five of the penal law;
  • Any building, erection or place, including one- or two-family dwellings, used for any of the unlawful activities described in section one hundred twenty-three of the alcoholic beverage control law;
  • Any building, erection or place, including one- or two-family dwellings, wherein there is occurring a violation of subchapter six, eight or ten of chapter one of title twenty-four of this code;
  • Any building, erection or place, including one- or two-family dwellings, wherein there is occurring a violation of subchapter three or four of chapter two of title twenty-four of this code;
  • Any building, erection or place, including one- or two-family dwellings, wherein there exists or is occurring a violation of the zoning resolution;
  • Any building, erection or place, including one- or two-family dwellings, wherein there is occurring a criminal nuisance as defined in section 240.45 of the penal law; and
  • Any building, erection or place, including one- or two-family dwellings, wherein, within the period of one year prior to the commencement of an action under this chapter, there have occurred two or more violations on the part of the lessees, owners, operators, or occupants, of the provisions of sections 165.40, 165.45, 165.50, 170.65, 170.70, and 175.10 of the penal law or section 415-a of the vehicle and traffic law.

First, without notice to the other side (defendant(s) and landlord(s)), the attorney for CEU files for a temporary closing order and a temporary restraining order in the Supreme Court located in the County that the premises and/or business is located.

New York City Administrative Code

1§ 7-704 Remedies.

  • The corporation counsel shall bring and maintain a civil proceeding in the name of the city in the supreme court of the county in which the building, erection or place is located to permanently enjoin the public nuisances, defined in subdivisions (a), (b), (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m) of section 7-703 of this chapter, in the manner provided in subchapter two of this chapter.
  • The corporation counsel shall bring and maintain a civil proceeding in the name of the city, in the supreme court of the county in which the building, erection or place is located to recover a civil penalty in relation to the public nuisances defined in subdivisions (b) and (c) of section 7-703 of this chapter, in the manner provided in subchapter three of this chapter.

New York City Administrative Code

1§ 7-711 Temporary closing order; temporary restraining order.

  • Generally. If on a motion for a preliminary injunction, the corporation counsel submits evidence warranting both a temporary closing order and a temporary restraining order, the court shall grant both orders.
  • Enforcement of temporary closing orders and temporary restraining orders. Temporary closing orders shall be enforced by the agency at whose request the underlying action is being brought. In the event the underlying action is being brought at the direction of the mayor, or at the request of several city agencies or by the corporation counsel on his or her own initiative, or upon the request of a district attorney, or a member of the city council, the order shall be enforced by the city agency designated by the mayor. The police department shall, upon the request of the agency involved or upon the direction of the mayor, assist in the enforcement of a temporary closing order or a temporary restraining order.
  • Inventory upon service of temporary closing orders and temporary restraining orders. The officers serving a temporary closing order or a temporary restraining order shall forthwith make and return to the court an inventory of personal property situated in and used in conducting, maintaining or permitting a public nuisance within the scope of this subchapter and shall enter upon the building, erection or place for such purpose. Such inventory shall be taken in any manner which is deemed likely to evidence a true and accurate representation of the personal property subject to such inventory including, but not limited to photographing such personal property.
  • Closing of premises pursuant to temporary closing order. The officers serving a temporary closing order shall, upon service of the order, command all persons present in the building, erection or place to vacate the premises forthwith. Upon the building, erection or place being vacated, the premises shall be securely locked and all keys delivered to the officers serving the order who thereafter shall deliver the keys to the fee owner, lessor or lessee of the building, erection or place involved. If the fee owner, lessor or lessee is not at the building, erection or place when the order is being executed, the officers shall securely padlock the premises and retain the keys until the fee owner, lessor or lessee of the building is ascertained, in which event, the officers shall deliver the keys to such owner, lessor or lessee.
  • Posting of temporary closing order and temporary restraining order; posting of notices; offenses. Upon service of a temporary closing order or a temporary restraining order, the officer shall post a copy thereof in a conspicuous place or upon one or more of the principal doors at entrances of such premises where the public nuisance is being conducted, maintained or permitted. In addition, where a temporary closing order has been granted, the officers shall affix, in a conspicuous place or upon one or more of the principal doors at entrances of such premises, a printed notice that the premises have been closed by court order, which notice shall contain the legend “closed by court order” in block lettering of sufficient size to be observed by anyone intending or likely to enter the premises, the date of the order, the court from which issued and the name of the office or agency posting the notice. In addition, where a temporary restraining order has been granted, the officers shall affix, in the same manner, a notice similar to the notice provided for in relation to a temporary closing order except that the notice shall state that certain described activity is prohibited by court order and that removal of property is prohibited by court order. Mutilation or removal of such a posted order or such a posted notice while it remains in force, in addition to any other punishment prescribed by law, shall be punishable, on conviction, by a fine of not more than five hundred dollars or by imprisonment not exceeding ninety days, or by both, provided such order or notice contains therein a notice of such penalty. The police department shall, upon the request of the agency involved or upon the direction of the mayor, assist in the enforcement of this subdivision.
  • Intentional disobedience of or resistance to temporary closing order or temporary restraining order. Intentional disobedience of or resistance to a temporary closing order or a temporary restraining order, in addition to any other punishment prescribed by law, shall be punishable, on conviction, by a fine of not more than one thousand dollars or by imprisonment not exceeding six months or by both.

Secondly, once the orders are granted, usually the same day, the Police Department enters the location and takes several photographs as evidence. The officers inventory the property (which may be used against the defendant(s) as evidence) and the premises is padlocked. Depending on what evidence is found during the “inventory” and what the photographs show, the judge will either grant a permanent injunction or a restraining order against the location.

New York City Administrative Code

1§ 7-706 Action for permanent injunction. 

  • Generally. Upon the direction of the mayor, or at the request of the head of a department or agency of the city, or at the request of a district attorney of any county within the city, or at the request of a member of the city council with respect to the public nuisances defined in subdivisions (a), (b), (c), (g), and (h) and section 7-703 of this chapter, or upon his or her own initiative, the corporation counsel may bring and maintain a civil proceeding in the name of the city in the supreme court to permanently enjoin a public nuisance within the scope of this subchapter, and the person or persons conducting, maintaining or permitting the public nuisance from further conducting, maintaining or permitting the public nuisance. The owner, lessor and lessee of a building, erection or place wherein the public nuisance as being conducted, maintained or permitted shall be made defendants in the action. The venue of such action shall be in the county where the public nuisance is being conducted, maintained or permitted. The existence of an adequate remedy at law shall not prevent the granting of temporary or permanent relief pursuant to this subchapter.
  • The summons; the caption; naming the building, erection or place as defendant. The corporation counsel shall name as defendants the building, erection or place wherein the public nuisance is being conducted, maintained or permitted, by describing it by block, lot number and street address and at least one of the owners of some part of or interest in the property.
  • In rem jurisdiction over building, erection or place. In rem jurisdiction shall be complete over the building, erection or place wherein the public nuisance is being conducted, maintained or permitted by affixing the summons to the door of the building, erection or place and by mailing the summons by certified or registered mail, return receipt requested, to one of the owners of some part of or interest in the property. Proof of service shall be filed within two days thereafter with the clerk of the court designated in the summons. Service shall be complete upon such filing.
  • Service of summons on other defendants. Defendants, other than the building, erection or place wherein the public nuisance is being conducted, maintained or permitted, shall be served with the summons as provided in the civil practice law and rules.
  • Notice of pendency. With respect to any action commenced or to be commenced by him or her pursuant to this subchapter, the corporation counsel may file a notice of pendency pursuant to the provisions of article sixty-five of the civil practice law and rules.
  • Presumption of ownership. The person in whose name the real estate affected by the action is recorded in the office of the city register or the county clerk, as the case may be, shall be presumed to be the owner thereof.
  • Presumption of employment or agency. Whenever there is evidence that a person was the manager, operator, supervisor or, in any other way, in charge of the premises, at the time a public nuisance was being conducted, maintained or permitted, such evidence shall be presumptive that he or she was an agent or employee of the owner or lessee of the building, erection or place.
  • Penalty. If, upon the trial of an action under this chapter or, upon a motion for summary judgment in an action under this chapter, a finding is made that the defendant has intentionally conducted, maintained or permitted a public nuisance defined in this chapter, a penalty, to be included in the judgment, may be awarded in an amount not to exceed one thousand dollars for each day it is found that the defendant intentionally conducted, maintained or permitted the public nuisance.

Upon recovery, such penalty shall be paid into the general fund of the city.

New York City Administrative Code

1§ 7-707 Preliminary injunction. 

  • Generally. Pending an action for a permanent injunction as provided for in section 7-706 of this subchapter, the court may grant a preliminary injunction enjoining a public nuisance within the scope of this subchapter and the person or persons conducting, maintaining or permitting the public nuisance from further conducting, maintaining or permitting the public nuisance. An order granting a preliminary injunction shall direct a trial of the issues within three business days after joinder of issue or, if issue has already been joined, within three business days after the entry of the order. Where a preliminary injunction has been granted, the court shall render a decision with respect to a permanent injunction within three business days after the conclusion of the trial. A temporary closing order may be granted pending a hearing for a preliminary injunction where it appears by clear and convincing evidence that a public nuisance within the scope of this subchapter is being conducted, maintained or permitted and that the public health, safety or welfare immediately requires the granting of a temporary closing order. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears by clear and convincing evidence that a public nuisance within the scope of this subchapter is being conducted, maintained or permitted.
  • Enforcement of preliminary injunction. A preliminary injunction shall be enforced by the city agency at whose request the underlying action is being brought. In the event the underlying action is being brought at the direction of the mayor, or at the request of several city agencies or by the corporation counsel, on his or her own initiative, or upon the request of a district attorney, or a member of the city council, the order shall be enforced by the agency designated by the mayor. The police department shall, upon the request of the agency involved or upon the direction of the mayor, assist in the enforcement of the preliminary injunction.
  • Preliminary injunctions, inventory, closing of premises, posting of orders and notices, offenses. If the court grants a preliminary injunction, the provisions of section 7-711 of this subchapter shall be applicable.

After the police execute the order, a hearing is scheduled shortly thereafter as required by law. The defendant(s) may proceed to a hearing, negotiate a settlement and/or file an order to show cause in an attempt to lift the temporary restraining order and/or preliminary injunction.

New York City Administrative Code

1§ 7-712 Temporary closing order; temporary restraining order; defendant’s remedies.

  • A temporary closing order or a temporary restraining order shall be vacated, upon notice to the corporation counsel, if the defendant shows by affidavit and such other proof as may be submitted that the public nuisance within the scope of this subchapter has been abated. An order vacating a temporary closing order or a temporary restraining order shall include a provision authorizing agencies of the city to inspect the building, erection or place which is the subject of an action pursuant to this chapter, periodically without notice, during the pendency of the action for the purpose of ascertaining whether or not the public nuisance has been resumed. Intentional disobedience of or resistance to an inspection provision of an order vacating a temporary closing order or a temporary restraining order, in addition to any other punishment prescribed by law, shall be punishable, on conviction, by a fine of not more than five hundred dollars or by imprisonment not exceeding six months, or by both. The police department shall, upon the request of the agency involved or upon the direction of the mayor, assist in the enforcement of an inspection provision of an order vacating a temporary closing order or temporary restraining order.
  • A temporary closing order or a temporary restraining order may be vacated by the court, upon notice to the corporation counsel, when the defendant gives an undertaking and the court is satisfied that the public health, safety or welfare will be protected adequately during the pendency of the action. The undertaking shall be in an amount equal to the assessed valuation of the building, erection or place where the public nuisance is being conducted, maintained or permitted or in such other amount as may be fixed by the court. The defendant shall pay to the city, in the event a judgment of permanent injunction is obtained, its actual costs, expenses and disbursements in investigating, bringing and maintaining the action.

Most locations will remain closed until the case is either heard before a judge or settled without a hearing. In general, most of the cases are settled under the following terms. That the owner agrees not to allow any criminal or illegal activity to occur at the location or it will be closed again. In addition, a civil fine is usually imposed by the city.

Do not hesitate to call The Law Offices of William C. McCulloh. We can assist you by getting your business re-opened and fully operational as soon as possible and limiting the damage of a closure and loss of income to you and your business. We can also make suggestions to help you limit your exposure to violations in the future.

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