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HomeMy WebLinkAbout15.22-379 AUGUST 23, 2022 SEPTEMBER 13, 2022 22-362 22-379 ORDINANCE FIRST READING SECOND READING (CARRIED 7-0 LOST _______ LAID OVER _______ WITHDRAWN _______) PURPOSE: AMEND SECTION 17-38.1 AND SECTION 17-32 OF THE CITY OF OSHKOSH MUNICIPAL CODE PERTAINING TO PUBLIC NUISANCE ABATEMENT INITIATED BY: LEGAL DEPARTMENT A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING SECTION 17-38.1 AND SECTION 17-32 OF THE CITY OF OSHKOSH MUNICIPAL CODE PERTAINING TO PUBLIC NUISANCE ABATEMENT WHEREAS, the legal department recommends certain amendments to the City’s public nuisance abatement ordinance that can be utilized by the police department to address properties that require repeated and frequent law enforcement action. WHEREAS, the amendments have been reviewed and conducted in coordination with the police department. NOW, THEREFORE, the Common Council of the City of Oshkosh do ordain as follows: SECTION 1. That Section 17-38.1 and Section 17-32 of the Oshkosh Municipal Code pertaining public nuisance abatement is hereby amended to read as shown on the attachment to this ordinance. SECTION 2. This ordinance shall be in full force and effect from and after its passage, and publication. SECTION 3. Publication Notice. Please take notice that the City of Oshkosh enacted ordinance #22-379 on SEPTEMBER 13, 2022, AMEND SECTION 17-38.1 AND SECTION 17-32 OF THE CITY OF OSHKOSH MUNICIPAL CODE PERTAINING PUBLIC NUISANCE ABATEMENT (A GENERAL ORDINANCE OF THE CITY OF OSHKOSH AMENDING AMEND SECTION 17-38.1 AND SECTION 17-32 OF THE CITY OF OSHKOSH MUNICIPAL CODE PERTAINING TO PUBLIC NUISANCE ABATEMENT). AUGUST 23, 2022 SEPTEMBER13, 2022 22-362 22-379 ORDINANCE FIRST READING SECOND READING CONT’D The ordinance amends language in Section 17-38.1 and Section 17-32 of the Oshkosh Municipal Code relating to the public nuisance abatement to clarify the counting of nuisance activity, to clarify language in the current ordinance, provide for termination of the nuisance and to specify an appeals procedure. The full text of the ordinance may be obtained at the Office of the City Clerk, 215 Church Avenue and through the City’s website at www.ci.oshkosh.wi.us. Clerk’s phone: 920/236-5011. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://www.ci.oshkosh.wi.us TO: Honorable Mayor and Members of the Common Council FROM: Lynn Lorenson, City Attorney Amy Vanden Hogen, Assistant City Attorney DATE: August 16, 2022 RE: Amend Section 17-38.1 and Section 17-32 of the City of Oshkosh Municipal Code Pertaining to Public Nuisance Abatement BACKGROUND The City of Oshkosh currently has a public nuisance ordinance that can be utilized by the Police Department to address properties that require repeated and frequent law enforcement action. The current ordinance is found in Section 17-38.1 with a related definition section in Section 17-32. In general, the ordinance holds a property owner accountable for what happens on, or in association with, their property. Specifically, if three or more nuisance activities occur at the same premises during a 12-month period, the Oshkosh Police Department may notify the premises owner in writing. Nuisance activities under the ordinance are defined to include a variety of disruptive behavior, including disorderly conduct, noise violations, drug offenses, etc. Once the property owner receives notice, the property owner has the option to meet with the Police Department to come up with an abatement plan to address the nuisance activity. If the property owner fails to address the nuisance activity, the Police Department can then assess for the cost of repeated police response and enforcement at the same premises. Recently, the Legal and Police Department have conducted a review of the City’s ordinance. In doing so, we reviewed our ordinance, our internal policies and forms, and ordinances from other municipalities in Wisconsin – including Appleton, Green Bay, Madison, and Milwaukee. Based on this review, staff is not recommending any major changes to our ordinance. City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://www.ci.oshkosh.wi.us However, there were a handful of changes that staff is proposing, many of which help clarify the existing ordinance and/or assist with more efficient and effective enforcement. ANALYSIS The current revisions are being proposed to Section 17-38.1 and Section 17-32, which are further discussed below: Section 17.38.1 – Abatement of Chronic Nuisance Premises - Name of Ordinance – The current ordinance is entitled “Alternate Method to Abate Nuisance.” The proposed revision changes the name to “Abatement of Chronic Nuisance Premises” which is consistent with naming conventions used in other municipalities around the State. - Individual Dwelling Units – Under the current ordinance, when a public nuisance activity occurs at an individual dwelling unit (example - an apartment) the nuisance activity needs to include the same occupant or lessee. The proposed definition eliminates this requirement. Although the public nuisance activity still needs to occur on three separate incidents at the same individual dwelling unit, it no longer needs to involve the same person. - Appeal – The current ordinance does not specifically define an appeal procedure. Under the proposed ordinance, an appeal of the Police Chief’s determination of a chronic nuisance premises can be made to the City Manager. - Termination of Nuisance - The current ordinance does not specifically define the date of termination of the nuisance. Under the proposed ordinance, a chronic nuisance shall be considered abated when no law enforcement action occurs for a period of six months from the date of original notification. Section 17.32 – Definitions - Definition of Nuisance Activities In addition to the list of current nuisance activities listed in Section 17-32, staff is proposing to add “illegal possession or use of firearms” as a countable nuisance activity. - Definition of “Law Enforcement Action” Under the current ordinance, a nuisance premises is when the police department determines that any three or more nuisance activities resulting in law enforcement action within a 12-month period have occurred at a premises. Staff is proposing to revise the definition of “Law Enforcement Action” as follows: City Hall, 215 Church Avenue P.O. Box 1130 Oshkosh, WI 54903-1130 http://www.ci.oshkosh.wi.us o First, the proposed revision solely focuses on incidents resulting in arrest, issuance of a citation, or referral for charges to the District Attorney. Staff believes this to be a more objective and enforceable standard than the current definition that also includes issuance of verbal warnings and long form reports. o Second, given the strong public policy in favor of encouraging domestic victims to report abuse, the proposed definition also specifically excludes any activity that was reported by the owner or occupant related to domestic abuse, sexual assault or stalking. This means these incidents would not give rise to countable offenses for purpose of the ordinance. FISCAL IMPACT The existing public nuisance ordinance already allows the police department to assess and collect the cost of police response and enforcement for any unabated nuisance activities at the same premises. However, the goal for these properties is abatement and therefore it is anticipated that any amounts collected under the ordinance would have a nominal fiscal impact. Further, although the proposed revisions pertain to the chronic nuisance ordinance, they do not address or modify the already existing ability under the municipal code to collect these expenses. RECOMMENDATION Staff recommends that the Council adopt the proposed ordinance revisions. Respectfully Submitted, Lynn A. Lorenson Amy Vanden Hogen City Attorney Assistant City Attorney Approved: John Fitzpatrick Assistant City Manager / Director of Administrative Services SECTION 17-32 DEFINITIONS (A) Public Nuisance A public nuisance is a thing, act, occupation, condition or use of property which shall continue for such length of time as to: (1) Substantially annoy, injure or endanger the comfort, health, repose or safety of the public; (2) In any way render the public insecure in life or in the use of property; (3) Greatly offend the public morals or decency; (4) Unlawfully and substantially interfere with, obstruct or tend to obstruct or render dangerous for passage any street, alley, highway, navigable body of water or other public way. (B) Additional Nuisances (1) In addition to any other provisions contained in this Article IV, any of the following activities, behaviors, or conduct, occurring on the premises shall also be deemed a public nuisance: a. An act of Harassment, as defined in §947.013, Wis. Slats. b. Disorderly Conduct, as defined in §947.01, Wis. Stats. c. Battery, Substantial Battery, or Aggravated Battery, as defined in §940.19, Wis. Stats. d. Lewd and Lascivious Behavior, as defined in §944.20, Wis. Stats. e. Prostitution, as defined in §944.30, Wis. Stats. f. Theft, as defined in §943.20, Wis. Stats. g. Receiving Stolen Property, as defined in §943.34, Wis. Stats. h. Arson, as defined in §943.02, Wis. Stats. i. Possession, Manufacture, or Delivery of a Controlled Substance or related offenses, as defined in §961, Wis. Stats. j. Gambling, as defined in §945.02, Wis. Slats. k. Animal violations, as defined in Chapter 6, of this Code. l. Violation of Adult Entertainment Regulations, as defined in this Chapter. m. Violations of Chapter 125 of the Wisconsin Statutes, or Chapter 4 of this Code. n. Violation of High Risk Sexual Conduct Establishment regulations, as defined in Chapter 15, of this Code. o. Trespassing, as defined in §943.13 and §943.14, Wis. Stats. p. Weapons violations, as defined in § 939.22, Wis. Stats and in this Chapter. q. Noise violations, as defined in this Chapter. r. Jurisdiction over juveniles alleged to be delinquent as defined in §938.12, Wis. Stats. s. Jurisdiction over juveniles alleged to have violated civil laws or ordinances as described in §938.125, Wis. Stats. t. Any conspiracy to commit, as defined in §939.31, Wis. Stats., or attempt to commit, as defined in §939.32, Wis. Stats., any of the activities, behaviors, or conduct enumerated in this subdivision. u. Illegal Possession or Use of Firearms, as defined in Ch. § 941, Wis. Stats. And § 948.60 Wis. Stat. (2) Additional Definitions For the purpose of this subsection (B) of this ordinance, the following terms shall have the following meanings: a. “Chief”: The Chief of Police or his or her designee. b. “Law Enforcement Action” is a police response that results in any of the following: arrest, issuance of a citation, or referral for charges to the District Attorney. “Law Enforcement Action” shall not include any activity that was reported by the owner or occupant of a premises requesting law enforcement services relating to domestic abuse, sexual assault, or stalking as further described in in Wis. Stat. § 813.12(1)(am), § 940.225, § 948.02, § 948.025, and § 940.32. c. “Owner”: The owner of the premises and his or her agents. d. “Premises”: An individual dwelling unit or an individual business premises and associated common areas; this includes but not limited to: apartments, hotel rooms, rooming houses, tax parcels and buildings. SECTION 17-38.1 ABATEMENT OF CHRONIC NUISANCE PREMISES (A) Notice of Chronic Nuisance Premises: In addition to any other enforcement measure provided by law, for any nuisance as enumerated in Sec. 17-32(B), whenever the Chief determines that three or more public nuisance activities resulting in a law enforcement action have occurred at a premises on separate incidents during a 12-month period, the Chief may notify the premises owner in writing. In the case of a residential rental unit, each incident shall involve the same individual dwelling unit (i.e. the same apartment unit, the same hotel room) but the incidents do not need to involve the same person. The notice shall contain the street address or legal description sufficient to identify the premises, a description of the nuisance activities that have occurred at the premises, a statement indicating that the cost of future enforcement may be assessed as a special charge against the premises, and a notice as to the appeal rights of the owner. The notice shall be delivered by any one of these methods: (a) by personally serving the owner or by leaving the notice at the owner’s abode or principal place of doing business with a person who is apparently in charge of the principal place of doing business, or (b) by registered mail, or by certified mail return receipt requested, or (c) by publication as a Class 1 notice together with mailing the notice to the owner’s last known residential or business address; the mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence. (B) Abatement Plan: Any owner receiving notice pursuant to this Section shall, unless other arrangements are agreed to in writing, meet with the Chief, or his/her designee, within 5 business days of receipt of such notice. The parties shall review the problems occurring at the property. Within 10 business days of this meeting, the owner shall submit to the Chief a written abatement plan to end the public nuisance activity on the property. The plan shall also specify a name, address, and telephone number of a person living in the State of Wisconsin who can be contacted in the event of further police, fire, or inspection contact. (C) Additional Public Nuisance Activity During Implementation of Agreed Upon Abatement Plan: If additional public nuisance activity occurs on a rental property subject to an abatement plan during the timely implementation of the agreed upon abatement plan, the property owner shall not be subject to penalties described in this Code. (D) Remedies and Forfeitures (1) Cost of Abatement: Whenever the Chief determines that additional public nuisance activity has occurred at a premises for which notice has been issued pursuant to this Section, that this public nuisance activity has occurred not less than 15 business days after notice has been issued, and that reasonable efforts have not been made to abate the public nuisance activity, the Chief shall calculate the cost of police response and enforcement for this and any subsequent public nuisance activities and shall cause such charges and administrative costs to be assessed and collected as a special charge against the premises. (2) Forfeitures: In addition to any other penalty provided in this Municipal Code, every person convicted of a violation of any of the provisions of this Section shall for each offense be punished by the forfeitures as set below, together with the costs of prosecution and in default of payment of such fines and costs. Each day of violation shall be considered a separate and distinct offense. a. First Offense: not less than $400, nor more than $800. b. Second offense within 24 months of previous conviction: not less than $600, nor more than $1,000. c. Third offense within 24 months of previous two convictions: not less than $800, nor more than $1,200. d. Fourth or subsequent offense within 24 months of previous three subsequent convictions: not less than $1,000, nor more than $2,000. (E) Appeal: An appeal of the determination of the Chief under this section may be submitted in writing to the City Manager within ten (10) days from the date of the notice in subsection (1). In the event such appeal is timely filed, all parties shall be afforded an opportunity to present evidence and to rebut or offer countervailing evidence at a hearing conducted by the City Manager, or the City Manager’s designee, after reasonable notice. For purposes of this section, the City elects not to be bound by Wis. Stat. Ch. 68 with respect to administrative procedure. The determination of the City Manager shall be final for purposes of judicial review pursuant to section 68.13 Wisconsin Statutes. (F) When Nuisance Abated: After the date that a notice was issued under this section, the public nuisance shall be considered abated when no law enforcement action occurs at a premises for a period of six (6) consecutive months. SECTION 17-32 DEFINITIONS (A) Public Nuisance A public nuisance is a thing, act, occupation, condition or use of property which shall continue for such length of time as to: (1) Substantially annoy, injure or endanger the comfort, health, repose or safety of the public; (2) In any way render the public insecure in life or in the use of property; (3) Greatly offend the public morals or decency; (4) Unlawfully and substantially interfere with, obstruct or tend to obstruct or render dangerous for passage any street, alley, highway, navigable body of water or other public way. (B) Additional Nuisances (1) In addition to any other provisions contained in this Article IV, any of the following activities, behaviors, or conduct, occurring on the premises shall also be deemed a public nuisance: a. An act of Harassment, as defined in §947.013, Wis. Slats. b. Disorderly Conduct, as defined in §947.01, Wis. Stats. c. Battery, Substantial Battery, or Aggravated Battery, as defined in §940.19, Wis. Stats. d. Lewd and Lascivious Behavior, as defined in §944.20, Wis. Stats. e. Prostitution, as defined in §944.30, Wis. Stats. f. Theft, as defined in §943.20, Wis. Stats. g. Receiving Stolen Property, as defined in §943.34, Wis. Stats. h. Arson, as defined in §943.02, Wis. Stats. i. Possession, Manufacture, or Delivery of a Controlled Substance or related offenses, as defined in §961, Wis. Stats. j. Gambling, as defined in §945.02, Wis. Slats. k. Animal violations, as defined in Chapter 6, of this Code. l. Violation of Adult Entertainment Regulations, as defined in this Chapter. m. Violations of Chapter 125 of the Wisconsin Statutes, or Chapter 4 of this Code. n. Violation of High Risk Sexual Conduct Establishment regulations, as defined in Chapter 15, of this Code. o. Trespassing, as defined in §943.13 and §943.14, Wis. Stats. p. Weapons violations, as defined in § 939.22, Wis. Stats and in this Chapter. q. Noise violations, as defined in this Chapter. r. Jurisdiction over juveniles alleged to be delinquent as defined in §938.12, Wis. Stats. s. Jurisdiction over juveniles alleged to have violated civil laws or ordinances as described in §938.125, Wis. Stats. t. Any conspiracy to commit, as defined in §939.31, Wis. Stats., or attempt to commit, as defined in §939.32, Wis. Stats., any of the activities, behaviors, or conduct enumerated in this subdivision. t.u. Illegal Possession or Use of Firearms, as defined in Ch. § 941, Wis. Stats. And § 948.60 Wis. Stat. (2) Additional Definitions For the purpose of this subsection (B) of this ordinance, the following terms shall have the following meanings: a. “Chief”: The Chief of Police or his or her designee. b. “Law Enforcement Action” is a police response that results in any of the following: arrest, issuance of a citation, or referral for charges to the District Attorney, or issuance of a verbal or written warning; or long form report. “Law Enforcement Action” shall not include any activity that was reported by the owner or occupant of a premises requesting law enforcement services relating to domestic abuse, sexual assault, or stalking as further described in in Wis. Stat. § 813.12(1)(am), § 940.225, § 948.02, § 948.025, and § 940.32. b.c. “Owner”: The owner of the premises and his or her agents. c.d. “Premises”: An individual dwelling unit or an individual business premises and associated common areas; this includes but not limited to: apartments, hotel rooms, rooming houses, tax parcels and buildings. SECTION 17-38.1 ALTERNATE METHOD TO ABATE NUSIANCEABATEMENT OF CHRONIC NUISANCE PREMISES (A) Notice to Ownerof Chronic Nuisance Premises: In addition to any other other enforcement measure provided by law, for any nuisance as enumerated in Sec. 17-32(B), whenever the Chief determines that three or more public nuisance activities resulting in a law enforcement action have occurred at a premises on separate incidents during a 12-month period, the Chief may notify the premises owner in writing. In the case of a residential rental unit, each incident shall involve the same individual dwelling unit (i.e. the same apartment unit, the same hotel room) but the incidents do not need to involve the same person (in the case of residential rental unit, each incident involving the same occupant, lessee or lessees) on separate incidents during a 12-month period, the Chief may notify the premises owner in writing. The notice shall contain the street address or legal description sufficient to identify the premises, a description of the nuisance activities that have occurred at the premises, a statement indicating that the cost of future enforcement may be assessed as a special charge against the premises, and a notice as to the appeal rights of the owner. The notice shall be delivered by any one of these methods: (a) by personally serving the owner or by leaving the notice at the owner’s abode or principal place of doing business with a person who is apparently in charge of the principal place of doing business, or (b) by registered mail, or by certified mail return receipt requested, or (c) by publication as a Class 1 notice together with mailing the notice to the owner’s last known residential or business address; the mailing may be omitted if the post-office address cannot be ascertained with reasonable diligence. (B) Abatement PlanAN: Any owner receiving notice pursuant to this Section shall, unless other arrangements are agreed to in writing, meet with the Chief Chief, or his/her designee, within 5 business days of receipt of such notice. The parties shall review the problems occurring at the property. Within 10 business days of this meeting, the owner shall submit to the Chief a written abatement plan to end the public nuisance activity on the property. The plan shall also specify a name, address, and telephone number of a person living in the State of Wisconsin who can be contacted in the event of further police, fire, or inspection contact. (C) Additional Public Nuisance Activity During Implementation of Agreed Upon Abatement Plan: If additional public nuisance activity occurs on a rental property subject to an abatement plan during the timely implementation of the agreed upon abatement plan, the property owner shall not be subject to penalties described in this Code. (D) (D) ADDITIONAL PUBLIC NUISANCE ACTIVITYRemedies and Forfeitures (1) Cost of Abatement: Whenever the Chief determines that additional public nuisance activity has occurred at a premises for which notice has been issued pursuant to this Section, that this public nuisance activity has occurred not less than 15 business days after notice has been issued, and that reasonable efforts have not been made to abate the public nuisance activity, the Chief shall calculate the cost of police response and enforcement for this and any subsequent public nuisance activities and shall cause such charges and administrative costs to be assessed and collected as a special charge against the premises. (2)(1) (3) aa. A property owner is in compliance with this ordinance if the property owner follows the abatement plan, or undertakes the remedies provided by Chapter 704 of the Wisconsin Statutes as may be amended from time to time, or takes one or more legal steps as identified in the abatement plan to remove the tenants creating the public nuisance allowable under Wisconsin Statutes and Consumer Protection Rules when notified by the Police Department in writing that an illegal public nuisance exists. (4) (5)(2) PENALITIESForfeitures: In addition to any other penalty provided in this Municipal Code, every person convicted of a violation of any of the provisions of this Section shall for each offense be punished by the forfeitures as set below, together with the costs of prosecution and in default of payment of such fines and costs. Each day of violation shall be considered a separate and distinct offense. a. First Offense: not less than $400, nor more than $800. b. Second offense within 24 months of previous conviction: not less than $600, nor more than $1,000. c. Third offense within 24 months of previous two convictions: not less than $800, nor more than $1,200. d. Fourth or subsequent offense within 24 months of previous three subsequent convictions: not less than $1,000, nor more than $2,000. (E) Appeal: An appeal of the determination of the Chief under this section may be submitted in writing to the City Manager within ten (10) days from the date of the notice in subsection (1). In the event such appeal is timely filed, all parties shall be afforded an opportunity to present evidence and to rebut or offer countervailing evidence at a hearing conducted by the City Manager, or the City Manager’s designee, after reasonable notice. For purposes of this section, the City elects not to be bound by Wis. Stat. Ch. 68 with respect to administrative procedure. The determination of the City Manager shall be final for purposes of judicial review pursuant to section 68.13 Wisconsin Statutes. (E)(F) When Nuisance Abated: After the date that a notice was issued under this section, the public nuisance shall be considered abated when no law enforcement action occurs at a premises for a period of six (6) consecutive months.