Lockport Union-Sun & Journal Online

October 12, 2012

Second trial averted by McFall plea deal

By Joyce M. Miles
Lockport Union-Sun & Journal

Lockport Union-Sun & Journal — The former owner of the Peters Dry Cleaning facility pleaded guilty to a building code violation Thursday, averting a second trial on the charge and settling a 10-month-old dispute with the City of Lockport.

Patrick McFall of Newfane, the former owner of 316 Willow St., pleaded guilty to failure to maintain the property in a clean, safe, sanitary condition. The charge stemmed from his inability to legally remove asbestos-tainted rubble after a section of the building collapsed Dec. (date).

Attorneys for McFall and the city hashed out a case settlement Thursday afternoon, when City Judge Thomas DiMillo had scheduled a final pre-trial conference for McFall. Jury selection for McFall’s trial was to start Oct. 17.

The settlement appeared to be hastened by DiMillo’s warning to attorneys that Thursday was the last day they could pursue alternatives to trial. He planned to contact the county commissioner of jurors today to request empanelment proceedings and once he did, he said, there would be no turning back.

The settlement has McFall agreeing to pay more than $38,000 in past-due property taxes and utility charges on 316 Willow, in exchange for the city’s support of a conditional discharge of the penalty that McFall faces for the building code violation. 

When McFall is sentenced Nov. 15, he might be fined up to $1,000 per day the violation existed or ordered to jail for up to one year, but the sentence will be put off. If McFall makes a $5,000 down payment on the back-taxes bill by Nov. 15, and monthly payments of $200 for one year, the court case against him will be over. If he doesn’t make the down payment by sentencing day, or fails to make a monthly payment during the period, then he’ll serve his sentence, defense attorney Jon Ross Wilson said.

In addition, the city is requiring McFall to sign a “confession of judgment,” which would empower it to pursue back-tax payments from McFall after the threat of jail has passed. The city could get civil court enforcement of the judgment by wage garnishing or other similar means, Wilson said.

McFall, who has asserted publicly that the city’s prosecution of him is vindictive, declined to say after court Thursday whether he’s satisfied with the terms of the settlement. His commenting probably is not prudent, at least until “the ink is dry” on the deal, Wilson wryly suggested. The settlement is tentative while the sides hash out exactly how much tax liability McFall has.

Unpaid tax and utility charges on 316 Willow date back to 2008, according to the city treasurer’s office, but McFall sold the property this past June and is not responsible for any charges generated after that, Wilson said.

The violation that brought McFall to court this past January, the pile of construction debris, remains in place today. At the city’s insistence, McFall had it tested for asbestos content and obtained a positive result, which meant he’d have to hire a specialty contractor to remove and dispose of the debris. He testified in court earlier this year that he obtained a contractor’s quote of about $53,000, and said that was money he did not have.

At the time, Wilson pitched a case settlement that would have McFall turn the property over to the city in exchange for it ending prosecution, and Mayor Michael Tucker tentatively approved the deal, but after details were leaked to the media, Tucker nixed it. Tucker said he had a change of heart after complaints about the city taking on an asbestos cleanup while also letting McFall “skate” on unpaid taxes. 

McFall was found guilty of the building code charge in a non-jury trial conducted by DiMillo this past May. DiMillo then sentenced him to seven months in jail, but was forced to reverse himself — and throw out McFall’s conviction — after Wilson successfully argued McFall should have been offered a jury trial on the charge, considering the stiffness of the penalty upon conviction.

The new settlement between McFall and the city was approved by the Common Council, City Attorney John Ottaviano said Thursday. The Council met in executive session Wednesday to discuss parameters including down and monthly payments, and authorized Ottaviano making a deal that holds McFall liable for past-due taxes in full, he said.

Going forward, Ottaviano added, the city will consider 316 Willow’s new owner of record, West Avenue resident Eddie Person, to be liable for any code violations on the property.