[Ord. No. 1389 §6, 8-11-2011]
A.
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.
B.
Definitions. For the purpose of this Section, the following
terms shall be defined as follows:
1.
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.
2.
And "inhabitable structure" means any structure
or portion of a structure, regardless of whether any person is actually
present, in which:
3.
The following terms related to the production or manufacture of methamphetamine
and related drugs shall mean:
a.
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.
b.
Methamphetamine precursor drug: Any drug containing
ephedrine, pseudoephedrine, phenylpropanolamine, or any of their salts,
optical isomers, or salts of optical isomers.
c.
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.
d.
Production: The manufacture of a controlled substance.
C.
Notice Of Public Nuisances. Whenever the City Attorney or
the Prosecuting Attorney of the City receives notice that:
1.
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
2.
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
3.
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.
D.
Multiple Or Subsequent Incidents Or Involvement Of Methamphetamine. If:
1.
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
2.
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
3.
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;
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the City Attorney or Prosecuting Attorney shall notify the Director of Public Works or his/her designee (hereinafter "Director") of said uses. The Director shall thereafter send a notice to all owners and tenants that a public nuisance may exist under this Chapter and that any such nuisance must be abated within thirty (30) days of sending of the notice. Said notice shall be given in accordance with Subsection (C) this Section.
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E.
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.
F.
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:
1.
Order the discontinuance of such use of the inhabitable structure
where a public nuisance exists; and/or
2.
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.
G.
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.
H.
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.
I.
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.
J.
Promulgation Of Rules. The City Attorney may promulgate
rules and regulations to carry out and give full effect to the provisions
of this Section.
