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HomeMy WebLinkAbout07-113 MARCH 27,2007 FIRST READING APRIL 10, 2007 SECOND READING 07 -1 02 07 -11 3 ORDINANCE (CARRIED 4-2 LOST LAID OVER WITHDRAWN PURPOSE: AMEND PUBLIC NUSIANCE REGULATIONS INITIATED BY: CITY ADMINISTRATION THE COMMON COUNCIL OF THE CITY OF OSHKOSH DO ORDAINS AS FOLLOWS: SECTION 1.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(B) of the Oshkosh Municipal Code pertaining to DEFINITIONS is created to read as follows: (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 S947.013, Wis. Slats. b. Disorderly Conduct, as defined in S947.01, Wis. Stats. c. Battery, Substantial Battery, or Aggravated Battery, as defined in S940.19, Wis. Stats. d. Lewd and Lascivious Behavior, as defined in S944.20, Wis. Stats. e. Prostitution, as defined in S944.30, Wis. Stats. f. Theft, as defined in S943.20, Wis. Stats. g. Receiving Stolen Property, as defined in S943.34, Wis. Stats. h. Arson, as defined in S943.02, Wis. Stats. I. Possession, Manufacture, or Delivery of a Controlled Substance or related offenses, as defined in S961, Wis. Stats. J. Gambling, as defined in S945.02, Wis. Slats. k. Animal violations, as defined in Chapter 6, of this Code. I. 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 S943.13 and S943.14, Wis. Stats. p. Weapons violations, as defined in S 939.22, Wis. Stats and in this Chapter. q. Noise violations, as defined in this Chapter. MARCH 27,2007 FIRST READING APRIL 10, 2007 SECOND READING 07 -1 02 07 -11 3 ORDINANCE CONT'D r. Jurisdiction over juveniles alleged to be delinquent as defined in S938.12, Wis. Stats. s. Jurisdiction over juveniles alleged to have violated civil laws or ordinances as described in S938.125, Wis. Stats. t. Any conspiracy to commit, as defined in S939.31, Wis. Stats., or attempt to commit, as defined in S939.32, Wis. Stats., any of the activities, behaviors, or conduct enumerated in this subdivision. (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, 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. SECTION 2. That Section 17-38.1 of the Oshkosh Municipal Code pertaining to ALTERNATE METHOD TO ABATE NUSIANCE is created to read as follows: SECTION 17-38.1 ALTERNATE METHOD TO ABATE NUSIANCE (1 ) Notice to Owner a. 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 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 anyone 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 MARCH 27,2007 FIRST READING APRIL 10, 2007 SECOND READING 07 -1 02 07 -11 3 ORDINANCE CONT'D 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, unless other arrangements are agreed to in writing, 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 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. (ii) ADDITIONAL PUBLIC NUISANCE ACTIVITY: 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. (iii) 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. 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 MARCH 27,2007 FIRST READING APRIL 10, 2007 SECOND READING 07 -1 02 07 -11 3 ORDINANCE CONT'D when notified by the Police Department In writing that an illegal public nuisance exists. (iv) PENALlTIES: 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. 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)( 1) of the Oshkosh Municipal Code pertaining to ADMINSTRATIVE APPEAL PROCESS TO REVIEW COST OF ABATEMENT is created to read as follows: (1) 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. MARCH 27,2007 FIRST READING APRIL 10, 2007 SECOND READING 07 -1 02 07 -113 ORDINANCE CONT'D 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. 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 5. This ordinance shall be effective upon passage and publication as provided by law.