City of Berkeley, MO
St. Louis County
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Table of Contents
Table of Contents
[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:
a. 
Any person lives or carries on business or other calling; or
b. 
People assemble for purposes of business, government, education, religion, entertainment or public transportation; or
c. 
Persons are accommodated overnight.
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;
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.
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:
a. 
Order the discontinuance of such use of the structure where a public nuisance exists; and/or
b. 
Order the closing of said structure as necessary to abate the public nuisance, as described hereafter.
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:
a. 
Any person lives or carries on business or other calling;
b. 
People assemble for purposes of business, government, education, religion, entertainment or public transportation; or
c. 
Persons are accommodated overnight.
4. 
For purposes of this Section, the following terms related to the production or manufacture of methamphetamine and related drugs shall mean:
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- 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.
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.
PRODUCTION
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,
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 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:
a. 
Order the discontinuance of such use of the inhabitable structure where a public nuisance exists; and/or
b. 
Order the closing of said inhabitable structure as necessary to abate the public nuisance, as described hereafter.
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. 
Definitions. As used in this Section, the following terms shall have these prescribed meanings:
NUISANCE
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.
OWNER
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.
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.
1. 
In addition to the issuance of a summons under Subsection (D), the Police Chief may initiate an administrative hearing in order to abate a public nuisance as defined in Subsections (A) and (B) herein.
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:
a. 
A record of the testimony presented at the hearing, which may be made by tape recording, digital recording or other appropriate means;
b. 
All exhibits submitted as evidence at the hearing; and
c. 
A copy of the Order.
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.