[Ord. No. 3789 §1, 4-21-2008]
A.
Public Nuisance Prohibited.
1.
Every person who owns, resides in, uses or is responsible for a structure
shall take all possible action to prevent said structure from being
the site of any illegal use, possession or selling of a controlled
substance, and any structure which is the site of such activity is
hereby declared to be a public nuisance.
2.
For purposes of this Section, a "controlled substance" is any substance so classified under Section 102(6) of the Controlled
Substances Act, 21 U.S.C. Section 802(6) 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 this Section
or as amended.
3.
For purposes of this Section, "structure" means
any structure or portion of a structure, regardless of whether any
person is actually present, in which:
4.
Prohibiting Certain Behaviors On Public Streets, Residential And
Commercial Properties.
[Ord. No. 4628, 8-25-2020]
b.
Cruising.
c.
Loitering.
e.
Discharging weapons on public or private property.
f.
Selling any illegal substances.
h.
Lewd and lascivious behavior.
i.
Public indecency, nudity.
j.
Prostitution.
k.
The illegal sale, distribution or consumption of alcoholic beverages.
l.
The illegal sale of single cigarettes.
m.
Consuming alcohol in public.
n.
Drunk and disorder behavior.
o.
Playing loud music.
p.
Parking on the grass.
q.
Illegal gambling.
r.
Noxious odors.
u.
Any person to fail or refuse to obey any reasonable order or direction of a Police Officer, refer to Section 210.430.
v.
The illegal sale, distribution or consumption of alcoholic beverages.
w.
Violation of municipal, State or Federal business licensing regulations.
x.
Maintaining or permitting a condition or engaging in an activity
which unreasonably annoys, injures, or endangers the safety, health,
morals, or repose of any inhabitants of the City of Berkeley or a
part thereof.
y.
Making a false report of a violation of the law to any Police Officer or other officer of the law in person, or over the telephone or radio, or by improper use of Emergency 911 or by any other means of communication, refer to Section 210.380.
z.
Any other condition or activity that may constitute a felony, misdemeanor
or ordinance violation under Federal, State, or municipal law which
is detrimental to the safety, welfare or convenience of the inhabitants
of the City of Berkeley or a part thereof.
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"Public Nuisance" means a thing, act, failure to act, occupation
or use of property which: (1) annoys, injures or endangers the comfort,
repose, health or safety of the public; (2) unlawfully interferes
with, obstructs, or renders dangerous for passage any stream, river,
channel, public park, square, street, alley, highway or sidewalk;
or (3) renders the public insecure in life or use of property. All
of the conditions in this Section are deemed public nuisances as listed
above.
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B.
Notice Of Public Nuisances.
1.
Whenever the City Attorney or the Prosecuting Attorney of the City
of Berkeley receives notice that:
a.
A search warrant has been issued and executed for any structure in
the City of Berkeley and that controlled substances have been confiscated
as a result of said search warrant; or
b.
An arrest has been made in any structure in the City of Berkeley
and that controlled substances have been confiscated as a result of
said arrest;
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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 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 structure for the illegal use, possession or sale of controlled substances. Said notice shall to given in accordance with Subsection (B)(3) of this Section.
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2.
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 structure within a three (3) year period or if 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 structure for the illegal use, possession or sale of controlled substances, the City Attorney or Prosecuting Attorney shall notify the Director of Public Works or his 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 (B)(3) of this Section.
3.
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 on the structure described therein shall be sufficient and notice
shall be deemed received on the date of posting.
4.
It shall be unlawful to mutilate or remove any notice posted on or
about a structure under authority of this Section.
C.
Failure To Abate Prohibited. It shall be unlawful for any
person or entity who 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.
D.
Determination Of Nuisance And Abatement.
1.
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 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 structure which shall be sufficient and notice shall
be deemed received on the date of posting.
2.
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 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.
3.
If, based on all the evidence adduced, the Director shall determine
that the use of the structure for the illegal use, sale or possession
of drugs is a significant, continuous and unreasonable interference
with rights common to all members of the community in general, such
as public health, safety, peace, morals or convenience, he may:
4.
In determining whether any structure should be closed as a result
of the existence of a public nuisance under this Chapter, the Director
shall consider, in addition to all 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 those persons in possession or having charge of as agent or otherwise
or having any interest in the structure used in conducting or maintaining
the public nuisance shall not be a defense by such persons or entities.
5.
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 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 Berkeley Police Department are authorized
to act upon and enforce such orders.
E.
Enforcement Of Closure Order.
1.
When the Director orders the closing of any 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.
2.
A closing directed by the Director pursuant to this Chapter shall
not constitute an act of possession, ownership or control of the closed
structure by the City of Berkeley.
3.
In the event that a 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 structure and shall charge the owners of the structure
therefor. In the event that the owners do not promptly reimburse the
City of Berkeley for necessary steps taken, the Director shall report
the charges to the City's Collector of Revenue and/or Finance Director
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 of Berkeley
for closure of the structure.
F.
Use Of A Closed Habitable Structure Prohibited. It shall
be unlawful to use or occupy or to permit the use or occupancy of
any structure ordered closed by the Director pursuant to this Chapter.
G.
Promulgation Of Rules. The City Attorney may promulgate
rules and regulations to carry out and give full effect to the provisions
of this Section as needed.
[Ord. No. 3790 §1, 4-21-2008]
A.
Public Nuisance Prohibited.
1.
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.
2.
For purposes of this Section, a "controlled substance" is any substance so classified under Section 102(6) of the Controlled
Substances Act, 21 U.S.C. Section 802(6) 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.
3.
For purposes of this Section, "inhabitable structure" means any structure or portion of a structure, regardless of whether
any person is actually present, in which:
4.
CHEMICAL USED IN THE MANUFACTURE OF METHAMPHETAMINE
MANUFACTURE OF METHAMPHETAMINE
METHAMPHETAMINE PRECURSOR DRUG
PRODUCTION
For purposes of this Section, the following terms related to the
production or manufacture of methamphetamine and related drugs shall
mean:
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- propane; Acetic anhydride; Acetone; Benzyl
Chloride; Ethyl ether; Hydriodic acid; Potassium permanganate; 2-Butanone
(or Methyl Ethyl Ketone or MEK); Toluene; Ephedrine, its salts, optical
isomers and salts of optical isomers; Norpseudoephedrine, its salts,
optical isomers and salts of optical isomers; Phenylpropanolamine,
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 (MIBK); Sulfuric acid; Iodine; Red phosphorous;
Gamma butyrolactone; 1,4 Butanediol.
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.
Any drug containing ephedrine, pseudoephedrine, phenylpropanolamine
or any of their salts, optical isomers or salts of optical isomers.
The manufacture of a controlled substance.
B.
Notice Of Public Nuisances.
1.
Whenever the City Attorney or the Prosecuting Attorney of the City
receives notice that:
a.
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
b.
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
c.
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 substances. Said notice shall be given in accordance with Subsection (B)(3) of this Section.
2.
If:
a.
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
b.
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
c.
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 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 (B)(3) of this Section.
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3.
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.
4.
It shall be unlawful to mutilate or remove any notice posted on or
about an inhabitable structure under authority of this Chapter.
C.
Determination Of Nuisance And Abatement.
1.
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 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.
2.
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 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.
3.
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 may:
4.
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.
5.
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 Berkeley Police Department are authorized
to act upon and enforce such orders.
[Ord. No. 3811 §§1 —
6, 8-18-2008]
A.
NUISANCE
OWNER
PREMISES
Definitions. As used in this Section, the following terms
shall have these prescribed meanings:
A continuing act or physical condition which is made, permitted,
allowed or continued by any person or legal entity, their agents or
servants or any person or legal entity who aids therein which is detrimental
to the safety, welfare or convenience of the inhabitants of the City
or a part thereof or any act or condition so designated by Statute
or ordinance.
The person or entity whose name is listed on the last deed
recorded at the office of the Recorder of Deeds, on the tax records
at the office of the Assessor or person in care, custody or control
of said premises.
Includes any parcel of property, residential or commercial
and the building or structure, if any, which is situated on the property
and any portion of the public way that abuts the parcel of property
when it is used in conjunction with the abutting property for the
commission of illegal activity.
B.
Public Nuisance. A public nuisance exists when the premises
are used for two (2) or more of the following incidents within the
previous twelve (12) months:
1.
Prostitution;
2.
Illegal gambling;
3.
The illegal sale, manufacture, storing, possession, distribution
or use of narcotics or other controlled substances or precursors;
4.
The illegal sale, manufacture, storing, possession, distribution
or use of drug paraphernalia or precursors;
5.
The illegal sale, distribution or consumption of alcoholic beverages;
6.
Illegal sale, storing, possession, use or distribution of a firearm(s),
weapons or explosive devices;
7.
Violation of Municipal, State or Federal business licensing regulations;
8.
Commission of any offense which is punishable by imprisonment of
ninety (90) days or more;
9.
Maintaining or permitting a condition or engaging in an activity
which unreasonably annoys, injures or endangers the safety, health,
morals or repose of any inhabitants of the City of Berkeley or a part
thereof;
10.
Any other condition or activity that may constitute a felony, misdemeanor
or ordinance violation under Federal, State or Municipal law which
is detrimental to the safety, welfare or convenience of the inhabitants
of the City of Berkeley or a part thereof.
C.
Notice.
1.
Whenever the Police Chief reasonably believes that any premises constitutes a public nuisance as defined in Subsections (A) and (B) herein, the Director or his designee shall give written notice to the person or entity who owns or controls the premises ("owner"). The notice shall state that the Director reasonably believes that a nuisance exists and identifies the activities or conditions which form the basis of the belief. Said notice shall also set forth reasonable abatement measures which the landlord must take within thirty (30) days of the notice. An owner occupant and/or tenant must immediately cease all nuisance behavior.
2.
A copy of the notice shall be sent to the owner of said premises
via first class United States mail. A copy of the notice shall also
be posted in a prominent place on the premises.
The notice shall also provide the owner of said premises a reasonable
opportunity to meet with a representative of the City to discuss the
allegations in the notice and the need for abatement measures.
3.
In the event that additional nuisance behavior occurs on said premises
which is different from the behavior which was listed in the notice,
the Director or his designee may send an "amended notice" to the owner
of said premises. The "amended notice" shall be sent via first class
United States mail and by posting a copy in a prominent place on the
premises. An additional thirty (30) day abatement period shall not
exist when an "amended notice" is issued.
D.
Summons. Any owner occupant or tenant who engages in, encourages,
permits or otherwise fails to immediately abate the nuisance may be
issued a summons for "engaging in a nuisance" or "maintaining a nuisance".
Any owner of residential or commercial unit(s), who does not abate
the nuisance within the thirty (30) day period, shall be issued a
summons for "failure to abate a nuisance". A defendant who is found
guilty of or pleads guilty to a nuisance offense shall be subject
to a fine of not less than one hundred dollars ($100.00) and not more
than two hundred fifty dollars ($250.00) for the first (1st) offense.
A defendant who is found guilty of or pleads guilty to a second (2nd)
nuisance offense shall be subject to a fine of two hundred fifty dollars
($250.00) and not more than five hundred dollars ($500.00). A defendant
who is found guilty of or pleads guilty to a third (3rd) or subsequent
nuisance offense shall be subject to a fine of one thousand dollars
($1,000.00). Each occurrence of nuisance behavior regardless of proximity
in time to any other nuisance violation shall be deemed a separate
and distinct offense for which a summons may be issued.
E.
Administrative Hearings.
2.
When an owner of rental residential or commercial property has failed
to abate the nuisance within thirty (30) days of the notice or an
owner occupant has failed to immediately abate the nuisance upon receipt
of the notice, the Police Chief or his designee may issue a hearing
notice to the owner of the subject premises. The hearing notice shall
be in writing and either sent by first class United States mail or
served in person, not less than twenty (20) days prior to the date
of such hearing. A copy of the hearing notice shall also be posted
in a prominent place on the premises.
3.
An attorney who appears on behalf of any owner must file a written
appearance with the Police Chief.
4.
The case for the City shall be presented by the City Attorney.
5.
The Administrative Hearing Officer may grant continuances only upon
a finding of good cause.
6.
All testimony shall be given tinder oath or affirmation.
7.
The Administrative Hearing Officer may issue subpoenas to secure
the attendance and testimony of relevant witnesses and the production
of relevant documents.
8.
Subject to Subsection (E)(11) of this Section, the Administrative Hearing Officer may permit witnesses to submit their testimony by affidavit.
9.
The formal and technical rules of evidence shall not apply at the
hearing. Evidence, including hearsay, may be admitted only if it is
of a type commonly relied upon by reasonably prudent persons in the
conduct of their affairs.
10.
No violation may be established except upon proof by a preponderance of the evidence; provided however, that a violation notice or a copy thereof issued and signed in accordance with Subsection (C) herein shall be prima facie evidence of the correctness of the facts specified therein.
11.
Upon the timely request of any party to the proceeding, any person
who the Administrative Hearing Officer determines may reasonably be
expected to provide testimony which is material and which does not
constitute a needless presentation of cumulative evidence, shall be
made available for cross-examination prior to a final determination
of liability.
12.
Upon conclusion of a hearing, the Administrative Hearing Officer
shall issue Findings of Fact, Conclusions of Law and Order of the
Hearing Officer ("Order") setting forth the facts and law which support
his/her nuisance determination.
13.
In the event that a nuisance is found to exist, the Administrative
Hearing Officer shall require that the owner implement reasonable
measures designed to prevent the recurrence of the nuisance activity.
Those measures may include, but are not limited to, making security
improvements to the premises, hiring of licensed and insured security
personnel, appointment of a receiver, the initiation and execution
of eviction proceedings against tenants who engage in the nuisance
behavior or the closing and boarding of the premises for a period
not to exceed one (1) year.
14.
An Order of Closure shall be recorded in the Office of the Recorder
of Deeds.
15.
The Order shall inform the respondent of his or her right to seek
judicial review of the Hearing Officer's final determination.
16.
The record of all hearings before an Administrative Hearing Officer
shall include:
F.
Revocation Of Permits, Licenses And Nullification Of Exemptions. If the Hearing Officer determines that a nuisance exists and orders
that the abatement of the nuisance requires closure of the subject
premises, the following shall apply:
1.
Prior to occupancy of the premises, whether commercial or residential,
the property shall be inspected by the appropriate City, State and
Federal Inspectors. The subject premises must be in compliance with
all applicable City, State and Federal health, safety property maintenance
and building codes. No occupancy shall occur unless all code violations
are abated.
2.
Any property, commercial or residential, which had previously been
exempt from or "grandfathered in" and not subject to compliance with
current health, safety, property maintenance and building codes will
be deemed to have forfeited that status and must be in total compliance
with all applicable City, State and Federal health, safety property
maintenance and building codes. No occupancy shall occur unless all
code violations are abated.
3.
Any licenses, permits or certificates, whether business, occupancy
or building code, which pertain to the subject premises and were in
effect at the time of an Order of Closure of the premises are deemed
revoked or abandoned.
