Lockport Union-Sun & Journal — Amid his parents' gasps and a daughter's sobbing, a business owner was led out of City Court in handcuffs Thursday to begin serving jail time for a building code violation.
Patrick McFall of Newfane, the owner of 316 Willow St., was sentenced to seven months in the county jail for not having asbestos-tainted construction debris taken away from the property in timely fashion. City Judge Thomas M. DiMillo pronounced him guilty last month, after a non-jury trial that stretched over three afternoons in housing court.
As McFall's relatives and supporters groaned over the sentence, DiMillo abruptly added that "there will be no stay," meaning McFall, the owner of two small businesses on Main Street and the custodial parent of a 17-year-old, would have no time to get his affairs in order before going to jail.
McFall's attorney, Jon Ross Wilson, will apply to Niagara County Court for a stay this morning, along with an appeal of the guilty verdict.
Though DiMillo and Prosecutor Matthew Brooks had warned all along that jail time was a real possibility for McFall, Wilson said he's shocked by the sentence.
"For a B misdemeanor, you get 90 days. Seven months is a long time," Wilson said. "I think the judge could have sent a message but not been so severe, weekends (in jail) or a work program ... . I really take exception to this sentence."
The maximum penalties for conviction of a building code violation are a $1,000-per-day fine and/or one year in jail.
Even the fact that McFall sold the property last week, to someone whom Wilson claimed has a plan to remediate it fully and transform the building into a residence, didn't soften DiMillo's apparent resolve to get after McFall. The city assessor's office confirmed Thursday that McFall transferred the deed to one Eddie Persons, for $1, on June 7.
McFall got hit hard for failure to clear debris from his property, last the site of Peters Dry Cleaning, after a portion of the facility collapsed Dec. 15.
He was unable to clear the debris — bricks, roofing, metal and glass shards — after the city forced him to have the pile tested for asbestos content and the test came back positive. State law requires the debris be cleared and disposed by a certified asbestos remediator only. McFall obtained a quote from a contractor suggesting the cleanup job would cost roughly $55,000. He didn't have access to that kind of money, he testified repeatedly.
From the bench, DiMillo asserted that giving McFall jail time was his only alternative. Fining him seemed pointless, given his proven cash-strapped status, DiMillo said, but letting him go with a lesser penalty would not be right — because the mess on Willow Street resulted from his willful neglect of the property over time.
In his sentencing statement, DiMillo recited a veritable laundry list of instances in which McFall didn't act like a "responsible" property owner. McFall bought Peters Dry Cleaning, the business and the facility, from Earl Peters in 2007, and quit paying property taxes by 2008, he says on the advice of his former attorney. He later stopped paying water and sewer bills from the city as well, and racked up an unpaid tax-and-utilities tab of $38,000 as of January.
McFall claimed several actions by Peters, his mortgage holder, caused physical or financial damage to the property, but he never pursued recompense legally — he just quit paying the mortgage.
When the west portion of 316 Willow appeared unstable last fall, and the state was moving to add the property to its Superfund list of inactive hazardous waste sites, McFall changed the name of the dry cleaning service and relocated it to Main Street.
At every turn, DiMillo said, McFall laid blame for his property woes at someone else's door step — the former attorney, Peters, the state or the city, which apparently surprised him by not seizing 316 Willow for unpaid taxes last year as he'd been led to expect it would.
In 2007, "it was a vibrant, taxpaying property, old, but standing. (Now) it's a pile of bricks," DiMillo said. "I know things get difficult, bad luck happens, but ... You played the blame game every step of the way; it was that guy, this guy, this guy. ... There's never been a sense of remorse, regret or apology."
When he postponed McFall's sentencing last month, DiMillo suggested community service was a possible alternative to fining or jailing him. Wilson, the defense attorney, was the only one who mentioned it Thursday.
Brooks, the city prosecutor, said after court that he wouldn't have supported it because of McFall's behavior in and out of court.
Prior to the trial on the debris charge, the sides battled over the city's request for a court order declaring 316 Willow a "nuisance" property, subject to emergency demolition on McFall's dime. At the time, McFall told the media he was the victim of a grudge pressed by Mayor Michael Tucker.
"This case seems more egregious in a lot of ways," Brooks said, "in the history of neglect of the property, in the fact it's in the heart of a residential area, and, frankly, in (McFall's) demeanor. He was even quoted in the paper at one point as saying he'd let the city take it down and then sue the city. It's contempt."
McFall sympathizers jeered the sentence and various city officials afterward.
Business owner David Mongielo, who's had his own code troubles in the Town of Lockport and faces a 15-day jail term over a sign law violation, sat in on McFall's sentencing hearing and at its conclusion shouted, "It's communism in America!"
McFall's mom, Mary, got in Brooks' face outside the court room and dared him to explain to her teary-eyed granddaughter why McFall can't attend her high school graduation ceremony next week.
Brooks reportedly received a police escort out of City Hall after a group of McFall supporters gathered near the front entrance.
As he was walking into City Hall, unaware what had happened in court, City Attorney John Ottaviano said McFall supporters approached him demanding to know where the group could find Tucker, whom they blamed for McFall's plight.
The insinuation is "absurd," Ottaviano said.
"Does anyone seriously think a sitting judge is asking the mayor, or any other city official for that matter, 'so, uh, what do you want me to do with this guy?' That is ridiculous," he said.