[Ord. No. 1389 §6, 8-11-2011]
Nuisance Prohibited. Every person who owns, resides in, uses, or is responsible for an inhabitable structure shall take all possible action to prevent said inhabitable structure from being the site of any illegal use, possession, or selling of a controlled substance or the site of the possession of methamphetamine precursors and/or chemicals used in the manufacture of methamphetamine for the purpose of manufacturing methamphetamine and related substances or the site where any controlled substance is manufactured illegally and any inhabitable structure which is the site of such activity is hereby declared to be a public nuisance.
Definitions. For the purpose of this Section, the following terms shall be defined as follows:
A "controlled substance" is any substance so classified under Section 102(6) of the Controlled Substances Act, 21 U.S.C. Section 802W, and includes all substances listed in Schedules I through V of 21 CFR Part 1308, as they may be revised from time to time; and any controlled substance as defined in Chapter 195, RSMo., in effect upon the passage of or as amended; and any controlled substance defined as such in this Code.
And "inhabitable structure" means any structure or portion of a structure, regardless of whether any person is actually present, in which:
The following terms related to the production or manufacture of methamphetamine and related drugs shall mean:
Manufacture of methamphetamine: The production, preparation, propagation, compounding or processing of methamphetamine and/or related drugs by way of either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. The possession of more than twenty-four (24) grams of any methamphetamine precursor drug or combination of methamphetamine precursor drugs shall be prima facie evidence of the manufacturing or production of methamphetamine.
Methamphetamine precursor drug: Any drug containing ephedrine, pseudoephedrine, phenylpropanolamine, or any of their salts, optical isomers, or salts of optical isomers.
Chemical used in the manufacture of methamphetamine: A chemical or substance which is commonly used in the manufacture of methamphetamine or related drugs and is an immediate chemical intermediary used or likely to be used in the manufacture of methamphetamine and related drugs including, but not limited to: Anthranilic acid, its esters and its salts; Benzyl cyanide; Ergotamine and its salts; Ergonovine and its salts; N-Acetylanthranilic acid, its esters and its salts; Phenylacetic acid, its esters and its salts; Piperidine and its salts; 3,4,-Methylenedioxyphenyl-2-propanone; Acetic anhydride; Acetone; Benzyl Chloride; Ethyl ether; Hydriodic acid; Potassium permanganate; 2- Butanone (or Methyl Ethyl Ketone or MEK); Thluene; Ephedrine, its salts, optical isomers, and salts of optical isomers; Norpseudoephedrine, its salts, optical isomers, and salts of optical isomers; Phenyipropanolamine, its salts, optical isomers, and salts of optical isomers; Pseudoephedrine, its salts, optical isomers, and salts of optical isomers; Methylamine and its salts; Ethylamine and its salts; Propionic anhydride; Isosafrole; Safrole; Piperonal; N-Methylephedrine, its salts, optical isomers and salts of optical isomers; N.Methylpseudoephedrine, its salts, optical isomers and salts of optical isomers; Benzaldehyde; Nitroethane; Methyl Isobutyl Ketone (MIBIO); Sulfuric acid; Iodine; Red phosphorous; Gamma butyrolactone; 1,4 Butanediol.
Production: The manufacture of a controlled substance.
Notice Of Public Nuisances. Whenever the City Attorney or the Prosecuting Attorney of the City receives notice that:
A search warrant has been issued and executed for any inhabitable structure in the City and that controlled substances have been confiscated as a result of said search warrant; or
An arrest has been made in any inhabitable structure in the City and that controlled substances have been confiscated as a result of said arrest; or
A search warrant has been issued and executed for any inhabitable structure in the City and that a methamphetamine precursor drug and two (2) or more chemicals used in the manufacture of methamphetamine were discovered as a result of said search warrant;
then the City Attorney or the Prosecuting Attorney may cause a "Notice of Public Nuisance" to be served on all owners and tenants of said inhabitable structure, advising them that the property may be declared a public nuisance by the Director of Public Works either immediately or in the event of any subsequent use of the inhabitable structure for the illegal use, possession or sale of controlled substance. Said notice shall be given in accordance with this Section.
All notices required herein shall be served by means of certified mail, return receipt requested, sent to the last known address of the intended recipient. In the event said notice is not received within ten (10) days of the original mailing, posting said notice in a conspicuous place at the inhabitable structure described therein shall be sufficient and notice shall be deemed received on the date of posting.
It shall be unlawful to mutilate or remove any notice posted on or about an inhabitable structure under authority of this Section.
Multiple Or Subsequent Incidents Or Involvement Of Methamphetamine. If:
The City Attorney or Prosecuting Attorney believes that there have been two (2) or more instances of illegal use, possession, or selling of controlled substances at the inhabitable structure within a three (3) year period; or
Within three (3) years of sending the "Notice of Public Nuisance" the City Attorney or Prosecuting Attorney receives notice of a subsequent use of the inhabitable structure for the illegal use, possession, or sale of controlled substances; or
The City Attorney or Prosecuting Attorney believes that the methamphetamine precursor drugs and chemicals used in the manufacture of methamphetamine found at the inhabitable structure were for the purpose of manufacturing methamphetamine;
Failure To Abate Prohibited. It shall be unlawful for any person or entity that is sent or receives notice of a public nuisance under this Chapter to fail to take all possible action to abate or bring about abatement of said public nuisance.
Determination Of Nuisance And Abatement. If the Director believes that a public nuisance may exist at the expiration of the thirty (30) day period after sending the notice or posting of the notice, he/she shall give notice to all owners and tenants by certified mail that the Director shall hold a hearing at the time and place specified therein for the purpose of determining whether a public nuisance exists.
Any such notice shall be given at least twenty-one (21) days prior to the scheduled hearing, and shall also be posted on the inhabitable structure which shall be sufficient and notice shall be deemed received on the date of posting.
Each interested person shall be given an opportunity at the hearing to present evidence under oath and to be represented by counsel. The Director shall have the power, on his/her own motion, to subpoena witnesses and to take testimony, under oath, pertaining to all relevant matters. The Director may continue all or part of a hearing, if necessary to conclude the investigation.
If, based on all the evidence adduced, the Director shall determine that the use of the inhabitable structure for the illegal use, sale, or possession of drugs, methamphetamine precursor drugs, or chemicals used in the manufacture of methamphetamine or the attempted manufacture of methamphetamine is a significant, continuous, and unreasonable interference with the rights common to all members of the community in general, such as public health, safety, peace, morals, or convenience, he/she may:
Order the discontinuance of such use of the inhabitable structure where a public nuisance exists; and/or
Order the closing of said inhabitable structure as necessary to abate the public nuisance, as described hereafter.
In determining whether an inhabitable structure should be closed as a result of the existence of a public nuisance under this Chapter, the Director shall consider, in addition to other relevant factors, the impact of the closure on innocent parties; however, the lack of knowledge of, acquiescence in, participation in, or responsibility for a public nuisance on the part of the owners, lessors, lessees, mortgagees and all other persons in possession or having charge of as agent or otherwise, or having an interest in the inhabitable structure used in conducting or maintaining the public nuisance shall not be a defense by such persons or entities.
Results of the hearing shall be mailed to the owner or the tenant by means of certified mail, return receipt requested. Any interested person or organization present at the hearing may request a copy of the Director's order. A copy of said order shall also be posted on the inhabitable structure within seventy-two (72) hours of the decision. Thirty (30) calendar days after the posting of an order issued pursuant to this Section, officers of the Edmundson Police Department are authorized to act upon and enforce such orders.
Appeal Of Director's Order. The decision of the Director may be appealed by filing an appeal, on such forms as prescribed by the City, with the Board of Aldermen within seven (7) days from the Director's decision. The appeal form shall set forth, at a minimum, the detailed grounds for such appeal and such further information as requested on the appeal form. The Board, as a whole, may review the matter or may appoint one (1) of its members as hearing officer who shall review the matter. The Board or hearing officer shall review the decision of the Director either, within its sole discretion, upon the record previously made or upon a new hearing and shall issue a written decision to all parties; such decision may be subject to judicial review in the Circuit Court of St. Louis County by filing an appropriate petition for judicial review within fifteen (15) days of the decision.
Enforcement Of Closure Order. When the Director orders the closing of an inhabitable structure under this Chapter, such closing shall be for a period as the Director may direct, but in no event shall the closing be for a period longer than one (1) year from the date of the posting of the order.
If the owner, lessor, or lessee shall submit proof satisfactory to the Director that the public nuisance has been abated for a period of thirty (30) days, then the Director may vacate or modify the provisions of the order directing closure.
A closing directed by the Director pursuant to this Chapter shall not constitute an act of possession, ownership, or control of the closed inhabitable structure by the City of Edmundson.
In the event that an inhabitable structure ordered closed by the Director is not closed by the owners or others in control of it, the Director shall take all appropriate steps to undertake and complete the work necessary to secure the inhabitable structure and shall charge the owners of the inhabitable structure therefor. In the event that the owners do not promptly reimburse the City for necessary steps taken, the Director shall report the charges to the City Clerk who shall order the assessment against the property so benefited.
Additionally, the City Attorney may commence procedures through the appropriate court to recover costs incurred by the City for closure of the inhabitable structure.
Use Of A Closed Habitable Structure Prohibited. It shall be unlawful to use or occupy, or to permit the use or occupancy of, any inhabitable structure ordered closed by the Director pursuant to this Chapter.
Promulgation Of Rules. The City Attorney may promulgate rules and regulations to carry out and give full effect to the provisions of this Section.