Legal Action against Code Enfoecement Officer, NY

[Q333]

well, unless they have changed things. the government has the requirement to prove the charges, not the other way around. It's a moot point since he was in the house but when I met him at the door and he said; here's a ticket for having 2 kitchens, I would have said; but I don't have two kitchens so I'll address this with the courts and sent him on his way. At the hearing I would have stated: I don't have two kitchens.

Been there, tried that last time with the Accessory Violation. Told them the Officer was never in the home. A talked to a few local lawyers, none of them were surprised to hear my story. They said either have the house re inspected, pass inspection and then you still have to plead guilty and pay a fine or pay me thousands of dollars to prove you are right.

You have to have your property inspected and passed by Code Enforcement to satisfy the Court. The Town does not have the Burden of proof. If you don't have 2 kitchens, it makes sense to the Town lawyers that a simple inspection will prove it. The issues arise when there are problems like mine. The Code Cowboys make less than 25% of what a Police Officer makes but have a very unpleasant job. They probably get raises based on how much paper they write. They know they can do whatever they want and walk away with no repercussions and they have all the power. Thus, the TELL IT TO THE JUDGE comments.

 

[justalayman]

you are looking at the practical issue. I am speaking to the legal issue. If you give up your rights in order to save yourself some money, that is your choice.

The Town does not have the Burden of proof.

well, that little thing we call the US Constitution says otherwise.

If you don't have 2 kitchens, it makes sense to the Town lawyers that a simple inspection will prove it

well, sure it does but that is irrelevant to the fact they are legally burdened with proving the allegation. If they cannot prove their charge as required by law (it varies as to whether it is a civil or criminal issue what level of proof is required), they fail and you are exonerated.

If the violation concerns possible jail time, the rules are even more easily enforced than if it is simply a civil matter.

Yes, to stand your ground in our legal system, it costs money for most people. Many people simply roll over and take it up the rear because they either can't or don't want to spend the money. That is their choice.

You said it yourself when speaking of the conversation with the lawyer:

or pay me thousands of dollars to prove you are right.

TO PROVE YOU ARE RIGHT.

 

[OHRoadwarrior]

One thing I would consider if this goes to court is requesting it be heard in another city court nearby. My FIL took on our city water department, the prosecutor requested a transfer, to avoid impropriety. The judge in the neighboring city, after hearing the evidence, told the water department he was declaring a recess and suggested they work out a solution, before he had to make a ruling. They did because the issue affected every household and it was cheaper for them to pay back only one, without a precedent.

 

[Q333]

argument now that he had no right to cut the cord is retaliatory because he wrote you up. I suspect you need to let that one go. That is not going to do you any good. If you had an issue with him cutting the cord, you should have filed a complaint at the time."

No, he had no right to do that. It took me a while to figure out what happened. I thought I dropped the cord somehow and retraced my steps through the house and yard looking for the cord. I dug through the dumpster looking for it. Then when I saw it was actually cut I felt sick, like I reached into my pocket and found my wallet gone. I couldn't understand why he did that. Someone I called who lives where people are civil suggested that he was trying to help me out, that wasn't my conclusion. I still don't know why he did that. And I should have filed a complaint with who? His Boss? And antagonize them more? I did complain when I called Friday that he did that without my permission. And had he returned any of my calls made prior for inspection, which he did not, I would have asked him why he did it.


"just because a prior inspection didn't result in a citation or order to remedy doesn't mean they couldn't have done so."

OK, but they took photographs last time on the re-inspection which will be exactly the same.

"Hell, you are the one that asked the guy to inspect your house. While I agree the rule is overly restrictive, the fact is; it is a rule. He was not only allowed in to inspect but actually invited in to inspect which resulted in the citation.[/QUOTE]

What? He already had the citation written up without the inspection. I would have to have an inspection anyway to get through the courts. Would I have moved the microwave, hide anything or changed ANYTHING ELSE AT ALL for a known inspection? No

 

[justalayman]

Sorry, but he no right to do that. It took me a while to figure out what hapenned. I thought I dropped the cord somehow and retraced my steps through the house and yard looking for the cord. I dug through the dumpster looking for it. Then when I saw it was actually cut I felt sick, like I reached into my pocket and found my wallet gone.

Oh, so you put the microwave into the dumpster into deceiving him that you were making an effort to comply with the rules and intended on retrieving it and putting it back from whence it came. Why didn't you just put the thing in the kitchen where it belongs. Set it on a chair in the middle of the kitchen and you were code compliant.

I couldn't understand why he did that.

because as you have shown here, the act was simple subterfuge. He simply make it so you couldn't pull the wool over his eyes and now you are pissed.

Someone I called who lives where people are civil suggested that he was trying to help me out, that wasn't my conclusion.

I still don't know why he did that.

I do. See above.

And I should have filed a complaint with who? I did complain when I called Friday that he did that without my permission. And had he returned any of my calls made prior for inspection, which he did not, I would have asked him why he did it.

if you believe he committed a crime, you report it to the police. Did you?

"just because a prior inspection didn't result in a citation or order to remedy doesn't mean they couldn't have done so."

OK, but they took photographs last time on the re-inspection which will be exactly the same

.So? feel blessed you weren't cited then I guess.


"Hell, you are the one that asked the guy to inspect your house. While I agree the rule is overly restrictive, the fact is; it is a rule. He was not only allowed in to inspect but actually invited in to inspect which resulted in the citation.[/QUOTE]

What? He already had the citation written up without the inspection.

So? If you didn't let him in, what proof would he have of the violation?

I would have to have an inspection anyway to get through the courts.

go ahead and believe that. I stand by my statement that the state has the burden of proof.

Would I have moved the microwave, hide anything or changed ANYTHING ELSE AT ALL for a known inspection? No

then what is your issue? You are guilty and you admit you would not have changed anything. Go plead guilty and move on. I'm just not seeing what your argument is here anymore.

 

[Q333]

"Oh, so you put the microwave into the dumpster into deceiving him that you were making an effort to comply with the rules and intended on retrieving it and putting it back from whence it came. Why didn't you just put the thing in the kitchen where it belongs. Set it on a chair in the middle of the kitchen and you were code compliant."

No, I hadn't used it in years and didn't need it. That doesn't mean someone else can destroy it. I only took it out of the dumpster to put it out for the scrap scavengers I couldn't put it in the kitchen because the kitchen was gutted, the rest of the upstairs was being painted and renovated, I am just finishing it now with new appliances. Had I not walked out with other scrap and remembered people make a living picking it up, I never would have looked at the microwave again.

"if you believe he committed a crime, you report it to the police. Did you?"
This Officer has to come back and find me in compliance. It would be a really, really bad idea to tick him off. He can refuse to sign off on my case and keep me in court for years.

"then what is your issue? You are guilty and you admit you would not have changed anything. Go plead guilty and move on. I'm just not seeing what your argument is here anymore."

Thanks to everyone who has reponded as the majority of you do understand the issues here.

My first argument is that I was code complaint before he left the premises.

Why do I have to plead guilty to a microwave in a storage room? Do you think this is law that the General Public knows about? And should this be tying up the courts time with more serious issues in our town like dunno...Code Enforcement Officers dealing drugs on the job? I just found out I can go to JAIL for up to one year here for this and the lowest fine is $250. I believe first offense fine for DWI is $225. That seem fair to you? How many people within a one mile radius do you think have a Microwave or Coffee Pot or Toaster someplace other than their main kitchen? Maybe it's just the principle of the thing but that's what the NYCLU is for.

 

[justalayman]

Ok enough of the feel sorry for me and arguing you didn't commit a crime after you quit doing the illegal act and everything. I think you might have a defense to the citation but I cannot find the code section I am looking for. What is the actual code section you are charged with. that will help find what I need, I think.

 

[Q333]

I have to get it tomarrow, I have to go to work.

 

[justalayman]

I'm sure I'll be around. I always seem to be.


but to give you a bit of insight as to my thoughts:

the section quincy posted is from this:

§ 270-15. Presumptive evidence of multifamily occupancy.

The 2nd kitchen issue, in that section, it merely used to build evidence of a house being used as a multifamily occupancy. It does not define what is actually a kitchen. It is merely in a list of items, that if there are two or more, allows the code folks to come to the conclusion it is a multifamily occupancy.



That is the section I cannot find in the Southampton building code. Now, if you go to NY state code, you have what I posted:

1. Every space which is intended, arranged or
designed for cooking or warming of food shall be either a kitchen or
kitchenette. The term "kitchen" shall mean such a space eighty square
feet or more in floor area. The term "kitchenette" shall mean such a
space which is less than eighty square feet in floor area.

Unless the area the microwave was in was intended, arranged, or designed for cooking etc. , it is not a kitchen, at least by NY building code/

 

[Q333]

It says Violation of Town Code 330-177a Change of Use

In that: "It shall be unlawful to use or to permit the use of any building, structure, premise, lot or land or part thereof erected or altered, enlarged or moved or put into use, in whole or in part, after the effective date of this chapter of any building, structure, premises lot or land or part thereof which the use is changed until a certificate of occupancy has been obtained by the owner as provided for under the Buiklding Code."

TO WIT: "I did observe on Tuesday, Sept 11. 2012 at approximately 2:30 P.M. that the defendant, ___________, as the owner and person in control at of the property at______________, did change the use of of the single family residence to a two family residence as there were kitchens in both levels of the residence, without first obtaining an updated CO from the Building Department of the Town of Southampton, as required."

 

[justalayman]

TO WIT: "I did observe on Tuesday, Sept 11. 2012 at approximately 2:30 P.M. that the defendant, ___________, as the owner and person in control at of the property at______________, did change the use of of the single family residence to a two family residence as there were kitchens in both levels of the residence, without first obtaining an updated CO from the Building Department of the Town of Southampton, as required."

based on that, you are not being charged with having a second kitchen but to using the single family residence as a multifamily residence without obtaining the necessary permits. The statement about the second kitchen is simply supporting evidence of the charge.

You are being charged with a zoning issue, not a building code violation. Chapter 330 is zoning.


if you believe it is a building code issue, then since they accept the NY state building code and I believe I had the proper section previously, unless the area the microwave was in an area that fit the bill, it wasn't a kitchen.

§ 123-1. Applicability and enforcement.
Pursuant to § 377* of the Executive Law of the State of New York, the Town of Southampton, Suffolk County, New York, hereby accepts the applicability of the New York State Uniform Fire Prevention and Building Code, except as provided herein, and shall enforce said code. [*NOTE: Chapter 707 of the Laws of 1981, New York.]
§ 123-2. Construal of provisions.
A. Nothing herein shall be construed as limiting the authority of the Town to implement future ordinances or local laws which are more stringent than the state code.

B. Nothing herein shall be construed to repeal, modify or constitute an alternative to any lawful zoning regulation which is more restrictive than this article or the state code.

note that building codes are in chapter 123

 

[Q333]

For crying out loud, the 800 SF house across the street from me with the same single family zoning has 6 entrance doors, 8 cars in the driveway and 6 kids in our school systems with different last names.

And I live alone.

 

[OHRoadwarrior]

I was just reading online about a female TX teacher getting 5 years for having sex with 4 of her 18 year old students and allowing one to tape it. It is not a free country. As I said earlier, you need to get over the anger and deal with refuting the substance.

 

[quincy]

Q333, you can look up the code yourself on your town website.

Go to http://www.southamptontownny.gov/content/81/default.aspx and click on "Town Code."

If you scroll down to Section 270-15 A(13) you will see how they define kitchen - a range, oven, hotplate, microwave or other similar device customarily used for cooking or preparation of food and/or a refrigerator. Because of the "or" in the Southampton code and New York's building code of "less than eighty square feet" of floor space, a closet with a hotplate could be called a kitchenette.


OHR, was your post supposed to be in a different thread?

 

[Q333]

OHR, was your post supposed to be in a different thread?[/QUOTE]

No, he was just pointing out what a screwed up world we live in....