The Village of Ossining seeks to encourage new businesses to come to the Village and prosper. To accomplish this goal the Board of Trustees believes it is important that these new businesses possess necessary information from the Building Department regarding compliance with applicable codes, rules and regulations.
Prior to occupying any commercial space within any building in the Village of Ossining, a commercial occupancy license must be applied for and approved by the Building Department. The fee for the license will be published in the annual fee schedule approved by the Board of Trustees. The Building Inspector will determine if plans are required detailing the proposed utilization of the commercial space/building and if the proposed business is consistent with the Uniform Code, the State Energy Code and the Village Code. Plans may be required regardless of whether alterations or renovations are proposed.
A.
Where no physical changes to the building or commercial space are planned, upon review by the Building Inspector, the commercial occupancy license will be granted:
(2)
If the proposed new use is not the same as the prior use, provide the information above and a code analysis for the change of use indicating compliance with the Uniform Code, State Energy Code and Village Code. The code analysis shall be prepared by a professional engineer or registered architect licensed by the State of New York.
(3)
Before the commercial occupancy license is issued, the premises shall be inspected by Code Enforcement Personnel and any deficiencies found shall be corrected.
B.
Where physical changes to the building or tenant space are proposed, a building permit will be required pursuant to Village Code § 92-4.
C.
If the proposed business requires a license to operate pursuant to Village Code Chapter 171, an application for the license shall be obtained from the Village Clerk.
D.
If the proposed business requires a license to operate by the State of New York or County of Westchester, copies of those licenses shall be submitted with the application for a Commercial Occupancy License.
If the Building Inspector finds after reviewing the application for a commercial occupancy license that the proposed changes do not substantially conform to the requirements in Chapter 270 (Zoning) of the Village Code, the Building Inspector shall refer the application to the Planning Board, Board of Architectural Review, Zoning Board of Appeals and/or Historic Preservation Commission.
A.
The owner of a business that is subject to the provisions of this article and who does not maintain a bona fide residence in the County of Westchester shall designate an agent who maintains a bona fide residence in the County of Westchester. No post office box address will be accepted in lieu of the domicile or street address for any of the information required by this article. The designation of the agent shall be indicated on the application form. The Building Department shall be promptly notified of any change in designation of the agent.
B.
The business owner's designated agent may be served with a notice of violation, order to remedy, notice of unsafe condition, an appearance ticket or other service of process, whether criminal or civil, pursuant to and subject to the provisions of law, as if served upon the business owner. No business owner who designates an agent may assert the defense of lack of notice or lack of personal jurisdiction based upon service upon the designated agent.
The Building Inspector shall issue a commercial occupancy license if the proposed business complies with the applicable requirements of the Uniform Code, the State Energy Code, and Village Code. The permit will remain in effect, unless revoked or suspended.
The Building Inspector may revoke or suspend a commercial occupancy permit:
A.
Where the Building Inspector finds that false statements or misrepresentations as to material facts were made in the application, plans or other documents upon which the license was based.
B.
Where the Building Inspector finds that the commercial occupancy license was issued in error because of incorrect, inaccurate, or incomplete information or the business for which the permit was issued violates the Uniform Code, the Energy Code or the Village code and should not have been issued.
C.
Review of denial, suspension or revocation. The Corporation Counsel shall serve as the hearing officer to hear and decide appeals taken by any determination made by the Building Inspector which denied, suspended or revoked a commercial occupancy permit. Any applicant who shall have been refused a permit or the holder commercial occupancy permit which permit has been suspended or revoked may appeal to the Corporation Counsel for review of such denial, suspension or revocation as set forth in this section. The failure of an aggrieved party to take an appeal within 10 days of service of such denial, suspension or revocation shall constitute a waiver of the right to appeal. For personal service, service will be deemed effective upon the date of service. For service by registered or certified mail, service will be deemed effective three days after mailing. An appeal shall be taken by filing with the Corporation Counsel a written appeal statement providing the applicant or permit holder's name, address, email address, phone number and contact information for the applicant or permit holder's representative, if any. The appeal statement should detail the basis for which a determination is requested reversing or modifying the determination of the Building Inspector. The applicant or permit holder may be represented by Counsel and shall have an opportunity to present evidence and question witnesses. The Building Inspector similarly may present evidence. Upon consideration of the evidence, but in no event later than 10 business days after the close of the hearing, the Corporation Counsel shall issue a decision sustaining, modifying or reversing the decision of the Building Inspector. The determination by the Corporation Counsel shall be filed with the Village Clerk and upon filing will become final. The Corporation Counsel's determination is subject to review pursuant to Article 78 of the Civil Practice Law and Rules. Such proceeding must be commenced within 30 days of the filing of the determination.
The commercial occupancy license may not be assigned or transferred. Any change in ownership requires submission of another application for a commercial occupancy license.
A.
Code enforcement personnel are authorized to issue orders to remedy, appearance tickets, and notices of violation for any violations of this chapter.
B.
An action or proceeding may be brought by the village in Supreme Court, Westchester County to prevent, restrain, correct or abate any violation of this article. This may include a request that the business be temporarily or permanently closed.
(1)
Proceeding for a permanent injunction.
(a)
To the extent known, the owner of the business and the owner of the building, if different, shall be defendants in the proceeding.
(b)
In rem jurisdiction shall be complete over the building and business by affixing the notice of petition to the door of the business and by mailing the notice of petition or order to show cause by certified mail to the building owner and, if available, the business owner.
(c)
The Village may file a notice of pendency pursuant to Article 65 of the Civil Practice Law and Rules.
(d)
Upon being served with the proceeding, the building owner shall, within three days provide the names of the owners/operators of the business that is the subject of the proceeding, thereafter, the business owner may be made a party to the proceeding if not already accomplished.
(e)
A defendant shall provide the following in a verified statement within five days of a demand: If the defendant is a natural person a defendant shall provide the person's: i) name; ii) date of birth; iii) current home or business address. If the defendant is a partnership, limited-liability partnership, limited-liability company or other unincorporated association, items i, ii, and iii shall be provided for all members. If the defendant is a corporation, provide the state of incorporation, names of officers and name of any agent for service of process.
(f)
If a finding is made that the business has been operating without a commercial occupancy license a penalty may be awarded against the building owner and the business owner in an amount not to exceed $1,000 for each day that the defendants intentionally conducted, maintained or permitted the unlicensed activity.
(2)
Preliminary injunction.
(a)
Pending a proceeding for a permanent injunction the court may grant a preliminary injunction enjoining the unlicensed activity and the person or persons conducting, maintaining, or permitting the unlicensed activity from further conducting, maintaining or permitting the unlicensed activity where the public health, safety or welfare immediately requires the granting of such an injunction. A temporary closing order may be granted pending a hearing for a preliminary injunction where it appears by clear and convincing evidence that the business is being operated without a commercial occupancy license 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.
(b)
A preliminary injunction shall be enforced by a police officer.
(c)
The Village shall show by affidavit and such other evidence as may be submitted that there is a cause of action for a permanent injunction abating the unlicensed activity.
(3)
Temporary closing order.
(a)
If, on a motion for a preliminary injunction alleging unlicensed activity as described in this section in a building used for commercial purposes, the village demonstrates by clear and convincing evidence that such unlicensed activity is being conducted, maintained or permitted and that the public health, safety or welfare immediately requires a temporary closing order, a temporary order closing such part of the building or premises where the unlicensed activity is being conducted, maintained or permitted may be granted without notice, pending order of the court granting or refusing the preliminary injunction and until the further order of the court. Upon granting a temporary closing order, the court shall direct the holding of a hearing for the preliminary injunction at the earliest possible time with a decision on the motion for a preliminary injunction to be rendered by the court at the earliest possible time after the conclusion of the hearing.
(b)
The temporary closing order shall be served personally in the same manner as a summons pursuant to the civil practice law and rules.
(c)
A temporary closing order shall only be issued for that portion of the building where the unlicensed activity is being conducted.
(4)
Temporary restraining order.
(a)
If, on a motion for a preliminary injunction alleging that a business is operating without a commercial occupancy license, the Village demonstrates by clear and convincing evidence that such unlicensed activity is being conducted, maintained, or permitted and that the public health, safety or welfare immediately requires a temporary restraining order, a temporary restraining order may be granted without notice restraining the defendants from conducting, maintaining or permitting such unlicensed activity, pending order of the court granting or refusing the preliminary injunction and until further order of the court. Upon granting a temporary restraining order, the court shall direct the holding of a hearing for the preliminary injunction at the earliest possible time.
(b)
Unless the court orders otherwise, a temporary restraining order and the papers upon which it was based and a notice of hearing for the preliminary injunction shall be personally served, in the same manner as a summons provided in the civil practice law and rules, upon any agent, employee or other representative of the unlicensed business at the time the temporary restraining order is served.
(5)
Additional proceedings for the temporary closing order and temporary restraining order.
(a)
Police officers may assist in the enforcement of a temporary closing order and temporary restraining order.
(b)
The police officer serving a temporary closing order shall, upon service of the order, command all persons present in that portion of the building or premises to vacate those premises forthwith. Upon the portion of the building or premises being vacated, the premises shall be securely locked by the Building Department who shall maintain the keys. If the building owner is not present when the order is being executed, the Building Department shall padlock the premises or building and retain the keys.
(c)
Upon service of the temporary closing order or temporary restraining order, the police officer shall post a copy of the order in a conspicuous place or upon one or more of the principal doors at the entrance to the premises where the unlicensed activity is being conducted, maintained or permitted. In addition, where a temporary closing order has been granted, the officer shall affix, in a conspicuous place or upon one or more of the principal doors at the entrances to such premises, a printed notice that the premises have been closed by court order, which notice shall have the legend "closed by court order" in block lettering sufficient to be observed, the date of the order, the court that issued the order and the name of the officer or agency posting the order. A similar notice shall be posted where a temporary restraining order has been issued. Mutilation or removal of such a posted order or notice while it remains in force, shall be punishable, on conviction, by a fine of not more than $3,000, provided such order or notice contains notice of the penalty.
(6)
No action or proceeding described in this subsection shall be commenced without authorization of the Village of Ossining Board of Trustees.
C.
Upon conviction, the penalty for operating a business without a commercial occupancy license shall be a fine not less than $500 nor more than $2,000. Every violation shall be a separate and distinct offense, and in the case of continuing violations, every day thereof shall be considered a separate and distinct offense.
D.
Civil penalties. In addition to those penalties described in this section, any person who violates this article shall be liable to pay a civil penalty of not more than $1,000 for each day or part thereof during which the violation continues. The civil penalties provided in this subsection shall be recoverable in an action brought by the Village. Any person that violates this article shall be liable for all reasonable attorneys' fees, costs and disbursements incurred by the village to recover the civil penalty.
