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HomeMy WebLinkAbout06-217 C O R R E C T E D 6 / 30 / 2006 – R E V I S E D A M E N D E D JUNE 13, 2006 JUNE 27, 2006 06-206 06-217 ORDINANCE FIRST READINGSECOND READING (CARRIED________ LOST _______ LAID OVER ___7-0___ WITHDRAWN ________) UNTIL 8/8/2006 PURPOSE:AMEND PUBLIC NUSIANCE REGULATIONS INITIATED BY:CITY ADMINISTRATION THE COMMON COUNCIL OF THE CITY OF OSHKOSH DO ORDAINS AS FOLLOWS: SECTION 1. That Section 17-32 of the Oshkosh Municipal Code pertaining to DEFINITIONS is repealed and recreated to read as follows: Public Nuisance (A) (1) In addition to any other provisions contained in this Article IV, a public nuisance is a thing, act, occupation, condition or use of property which shall continue for such length of time as to: a. Substantially annoy, injure or endanger the comfort, health, repose or safety of the public; b. In any way render the public insecure in life or in the use of property; c. Greatly offend the public morals or decency; d. 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. (2) In addition to any other provisions contained in this Article IV, any of the following activities, behaviors, or conduct, occurring on the premises shall 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. JUNE 13, 2006 JUNE 27, 2006 06-206 06-217 ORDINANCE FIRST READINGSECOND READING CONT’D 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. (B) Additional Definitions 1. For the purpose of this ordinance, the following terms shall be construed to mean: a. “Chief”: The Chief of Police or his or her designee. b. “Law Enforcement Action” includes police response that results in any of the following: arrest, issuance of a citation, referral, or issuance of a verbal or written warning; or long form report. 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. e. Provisions of the Oshkosh Municipal Code, which, though not specifically enumerated in this Ordinance, conflict with the provisions of this Ordinance, are either repealed or amended to the extent necessary to carry out the purposes of this Ordinance. SECTION 2. That Section 17-38 (B)(1) of the Oshkosh Municipal Code pertaining to SUMMARY ABATEMENT/NOTICE OF OWNER is repealed and recreated to read as follows: JUNE 13, 2006 JUNE 27, 2006 06-206 06-217 ORDINANCE FIRST READINGSECOND READING CONT’D (1) Notice to Owner a. In addition to any other enforcement measure provided by law, for any public nuisance as enumerated in Sec. 17-32(A)(2), whenever the Chief determines that three or more nuisance activities resulting in enforcement action have occurred at a premise (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. (i) ABATEMENT PLAN: Any owner receiving notice pursuant to this Section shall meet with the Chief 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 an abatement plan to end the 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. (ii) ADDITIONAL NUISANCE ACTIVITY: Whenever the Chief determines that additional nuisance activity has occurred at a premises for which notice has been issued pursuant to this Section, that this 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 nuisance activity, the Chief shall calculate the cost of police response and enforcement for this and any subsequent nuisance activities cause such charges and administrative costs to be assessed and collected as a special charge against the premises. JUNE 13, 2006 JUNE 27, 2006 06-206 06-217 ORDINANCE FIRST READINGSECOND READING CONT’D (iii) ADDITIONAL NUISANCE ACTIVITY DURING IMPLEMENTATION OF AGREED UPON ABATEMENT PLAN: If additional 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. aa. A landlord is in compliance with this ordinance if the landlord follows the abatement plan or takes every legal step to remove the tenants creating the nuisance allowable under Wisconsin Statutes and Consumer Protection Rules when notified by the Police Department in writing that a illegal nuisance exists. (iv) PENALITIES: In addition to any other penalty provided in this Municipal Code, every person convicted of a violation of any of the provisions of this sub. (a) 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. aa. First Offense: not less than $400, nor more than $800. bb. Second offense within 24 months of previous conviction: not less than $600, nor more than $1,000. cc. Third offense within 24 months of previous two convictions: not less than $800, nor more than $1,200. dd. Fourth or subsequent offense within 24 months of previous three or subsequent convictions: not less than $1,000, nor more than $2,000. SECTION 3. That Section 17-38(E) of the Oshkosh Municipal Code pertaining to COST OF ABATEMENT is repealed and recreated to read as follows: (E) Cost of Abatement (1) In addition to any other penalty imposed by this Article for the erection, contrivance, creation, continuance or maintenance of a public nuisance, the cost of abating a public nuisance by the city may be collected as a debt from the owner, occupant or person causing, permitting or maintaining the nuisance or assessed against the real estate as a special charge. JUNE 13, 2006 JUNE 27, 2006 06-206 06-217 ORDINANCE FIRST READINGSECOND READING CONT’D (2) Wherever this Article imposes the Cost of Abatement as a special charge against the premises, the City of Oshkosh elects not to be subject to the administrative review provisions contained within Chapter 68 of the Wisconsin Statutes, and establishes the following as a complete and final review procedure: As a condition precedent to challenging any special charge, the owner of the premises must timely pay the charge in full under protest to the City. An appeal shall be to the city manager and can be undertaken only by filing a written appeal with the city clerk concurrent with the date of payment. The written appeal shall specify all grounds for challenge to the amount of the special charge and shall state the amount of charge that the appellant considers to be appropriate. Failure to timely and properly appeal shall deprive the city manager of jurisdiction to hear the appeal. a. The city manager shall have 120 calendar days to consider an appeal under this subsection. In considering an appeal, the city manager shall determine whether the charge is fair and reasonable and, in the event the appeal is granted, whether or not a refund is due the appellant and the amount of the refund. The city manager shall conduct a formal or informal hearing at such time and place as designated in a hearing notice to the appellant, providing five (5) business days notice to the appellant. The city manager shall obtain sufficient facts upon which to make a determination. The decision shall be based upon the evidence presented. The city manager shall notify the appellant in writing of the determination by first class mail addressed to the individual and at the address listed within the appeal. Service is conclusive upon mailing. b. The decision of the city manager is final except if the owner of the premises appeals the decision to a court of competent jurisdiction. Such appeal shall be filed no later than thirty (30) calendar days after the date of mailing the decision of the city manager. Such appeal shall be by writ of certiorari and the reviewing court shall be limited solely to the record created before the city manager. Costs, but not attorney fees, shall be awarded to the prevailing party, at the sole discretion of the court. Failure to timely and properly appeal shall deprive the court of jurisdiction to hear the appeal. SECTION 4. This ordinance shall be effective upon passage and publication as provided by law.