[Peace-discuss] Re: Nuisance Ordinance and Racism

Sun Jan 4 13:28:15 CST 2009

>Absolutely incorrect.  You apparently missed a couple of references in the
statute to the "trier of fact".  The "trier of fact" IS a court of law.
This >preponderance of evidence of "nuisance activity" has to be determined
by a court of law - which is, in our society, the traditional check on
police and >other executive abuse.  

Unless this is a special legal phrase, the "trier of fact" does not have to
be a court of law; it can be an administrative hearing officer, and formal
or informal administrative court set up by the executive officers of the
City under municipal ordinances, administrative policies, by-laws or  just
an administrator. It is unclear if the "trier of fact" even needs to be an
attorney with a law degree who has passed the bar.

>Section B(3) refers to a "hearing officer".  I don't know if that would be
a judge or some ancillary official.  I also don't know whether the defendant
>could request a jury trial in such cases.  But the "trier of fact"
ascertaining guilt and imposing the fine is a court, which is all the due
process that >anyone in our society can expect or hope for.  

It is also unclear if the "trier of fact" is indeed a court of law or an
administrative court, if the actions are civil, criminal, or administrative,
or if the accused is given both substantive and procedural due process
(e.g., can they have a lawyer present, do they have the right to subpoena
city personnel and records, can they call witnesses, can they cross-examine
witnesses, do the rules of perjury apply to testimony, can they challenge
the right of the hearing officer to hear the case, can they call into
question how a "preponderance of evidence" is determined or the competency
of those who have filed the nuisance charges, etc.?).  

These sorts of ordinances are typically as problematic to establish
constitutionality for or implement as are pornography, loitering, blight
ordinances; they often fail the test of constitutionality when challenged in
"real" courts of law for one reason or another (typically for being too
vague and ambiguous, for being in conflict with other constitutional
provisions, or for being too arbitrary and capricious in their enforcement
and/or applications).

From: peace-discuss-bounces at lists.chambana.net
[mailto:peace-discuss-bounces at lists.chambana.net] On Behalf Of John W.
Sent: Sunday, January 04, 2009 6:45 AM
To: Randall Cotton
Cc: peace-discuss at lists.chambana.net
Subject: Re: [Peace-discuss] Re: Nuisance Ordinance and Racism

A couple of comments below.

On Fri, Jan 2, 2009 at 8:06 PM, Randall Cotton <recotton at earthlink.net>
wrote:

Below is the text of the draft "Criminal Nuisance Property" ordinance.
Though at least one revision to this initial draft is expected, the text
below is what resulted from Mayor Prussing's push for this (she asked City
Attorney Ron O'Neal to work this up for her).

The next discussion of this impending ordinance is expected at the January
12th City Council meeting (technically the 12th is a meeting of the COW -
Committee of the Whole).

Key passages:

"Nuisance property means any property on which the police department has
two (2) or more official police reports of nuisance activity which has
occurred within a six-month period." [Even if those reports are actually
erroneous - REC]

"Nuisance activities mean any of the following activities, behaviors, or
conduct, as defined by federal or state statutes, as well as municipal
ordinances:
(1) Mob action.
(2) Assault.
(3) Battery.
(4) Unlawful use of weapons or firearms.
(5) Unlawful discharge of a firearm.
(6) Prostitution.
(7) Soliciting or patronizing a prostitute.
(8) Keeping a house of prostitution.
(9) Pandering.
(10) Obscenity.
(11) Sexual assault and sexual abuse.
(12) Public indecency.
(13) Unlawful manufacture, sale, distribution, possession, or use of
controlled substances.
(14) Unlawful, production, sale, distribution, possession, or use of
cannabis.
(15) Illegal gambling.
(16) Keeping or maintaining a place of illegal gambling.
(17) Unlawful possession of gambling devices.
(18) Arson."

"No property shall be declared a criminal nuisance property
unless it is proven by a preponderance of the evidence there has been
two (2) or more instances of nuisance activity within a six-month period
of time." [That is, up to 49.99...% chance that no nuisance activity
occurred - REC]

"Any person or person in charge who (a) encourages or permits a
property to become a nuisance property as defined in Subsection A.; (b)
allows a property to continue as a nuisance property; (c) fails to
implement reasonable and warranted measures, as specified by the police
chief, shall be in violation of this section."

"Each day that a violation of this section continues shall be
considered a separate and distinct offense. The fine for violation of this
Section shall be no less than $300.00 per incident per day and no more
than $750.00 per incident per day or the maximum per incident allowed by
the Code of Ordinances, whichever is greater."

"the City of Urbana may, at its discretion ... Suspend the rental license
at a criminal nuisance property, if such property is rented or leased. If
such license is suspended, the owner of the property shall close and
secure said property..."

So, in summary, the Police Chief is essentially given the power to fine
landlords hundreds of dollars a day and close their property, kicking out
all tenants, if the landlord doesn't follow "reasonable and warranted
measures, as specified by the police chief". And this all comes about
based on the judgments of the police that there's a "preponderance of the
evidence" that "nuisance activity" has occurred at the property.

So this appears to bypass the normal due process for criminal accusations
and "proof beyond a reasonable doubt" in a court of law.

Absolutely incorrect.  You apparently missed a couple of references in the
statute to the "trier of fact".  The "trier of fact" IS a court of law.
This preponderance of evidence of "nuisance activity" has to be determined
by a court of law - which is, in our society, the traditional check on
police and other executive abuse.  

Section B(3) refers to a "hearing officer".  I don't know if that would be a
judge or some ancillary official.  I also don't know whether the defendant
could request a jury trial in such cases.  But the "trier of fact"
ascertaining guilt and imposing the fine is a court, which is all the due
process that anyone in our society can expect or hope for.

It establishes
very consequential powers to the police (and the police chief in
particular) which can be wielded even if he thinks there may be up to a
49.99...% chance that no nuisance activity occurred.

So we have a combination of immense power to penalize with unscrutinized
"discretion" of individual police officers to wield said penalization.
Just as racial profiling exists in the context of traffic stops (because
of unscrutinized "discretion"), this power will also tend to be abused and
be disproportionately wielded against minorities and the poor. And even if
it's fought in court, the police need only convince a judge that the
"nuisance" activity only *probably* occurred.

According to a preponderance of the evidence, which is defined in the
ordinance.

Of course I do agree with you that there is the potential for abuse.  There
is ALWAYS the potential for abuse.  But as Ricky says in a later post, if
you were living next door to a house where all sorts of criminal activity
was going on in plain view, I'm quite sure that you'd want something done
about it, too.

And Prussing is supposed to be progressive?

R

AN ORDINANCE AMENDING CHAPTER 15, ARTICLE IV, DIVISION 1

OF THE URBANA CODE OF ORDINANCES

(Criminal Nuisance Property)

WHEREAS, the City of Urbana has a population of more that 25,000 and is,
therefore, a home rule unit under subsection (a) of Section 6 of Article
VII of the Illinois Constitution of 1970; and

WHEREAS, subject to said Section, a home rule unit may exercise any power
and perform any function pertaining to its government and affairs for the
protection of the public health, safety, morals, and welfare; and

WHEREAS, both the effective control and elimination of criminal nuisance
activity are essential to the health and welfare of the City of Urbana's
inhabitants and visitors, as well as essential to the peace and quiet
enjoyment of the City's neighborhoods; and

WHEREAS, the Illinois Legislature has, for a number of years,
criminalized, as enumerated in 720 ILCS 5/37-1 et seq., the maintenance of
nuisance properties, said properties having been used to facilitate
criminal activity unabated;

Page 1 of 6

WHEREAS, the City of Urbana has an interest in encouraging the prompt and
effective abatement of criminal nuisance behavior by property owners and
occupants;

WHEREAS, the City of Urbana wishes create an Ordinance that prohibits the
facilitation of, or acquiescence to, criminal nuisance activity on any
property over which the City has jurisdiction;

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF URBANA,
ILLINOIS, as follows:

Section One:

Section 15-65, to be titled "Criminal Nuisance Property", is hereby
created, and Chapter 15, Article IV, Division 1 of the City of Urbana Code
of Ordinances shall be amended, as follows:

Section 15-65.

A. Definitions

Nuisance activities mean any of the following activities, behaviors, or
conduct, as defined by federal or state statutes, as well as municipal
ordinances:

(1) Mob action.

(2) Assault.

(3) Battery.

(4) Unlawful use of weapons or firearms.

(5) Unlawful discharge of a firearm.

(6) Prostitution.

(7) Soliciting or patronizing a prostitute.

(8) Keeping a house of prostitution.

(9) Pandering.

(10) Obscenity.

Page 2 of 6

(11) Sexual assault and sexual abuse.

(12) Public indecency.

(13) Unlawful manufacture, sale, distribution, possession, or use of
controlled substances.

(14) Unlawful, production, sale, distribution, possession, or use of
cannabis.

(15) Illegal gambling.

(16) Keeping or maintaining a place of illegal gambling.

(17) Unlawful possession of gambling devices.

(18) Arson.

Nuisance property means any property on which the police department has
two (2) or more official police reports of nuisance activity which has
occurred within a six-month period.

Person means any natural person, agent, association, firm, partnership,
corporation or other entity capable of owning, occupying, or using
property in the City of Urbana.

Person in charge means any person, in actual or constructive possession of
a property, including, but not limited to, an owner or occupant of
property under his ownership or control.

Police chief means the Chief of Police of the City of Urbana or his
designee.

Property means any property, including land and that which is affixed,
incidental, or appurtenant to land, including, but not limited to, any
business or residence, parking area, loading area, landscaping, building
or structure or any separate part, unit, or portion thereof, or any
business equipment, whether or not permanent. For property consisting of
more than one unit, property may be limited to the unit or the portion of
the property on which any nuisance activity has occurred or is occurring,
but includes areas of the property used in common by all units of
property, including, without limitation, other structures erected on the
property and areas used for parking, loading, recreational activities, and
landscaping.

B. Violations

(1) Any property on which on which criminal nuisance activity occurs may
be declared a criminal nuisance

Page 3 of 6

property. No property shall be declared a criminal nuisance property
unless it is proven by a preponderance of the evidence that there has been
two (2) or more instances of nuisance activity within a six-month period
of time.

(2) Any person or person in charge who (a) encourages or permits a
property to become a nuisance property as defined in Subsection A.; (b)
allows a property to continue as a nuisance property; (c) fails to
implement reasonable and warranted measures, as specified by the police
chief, shall be in violation of this section. In determining whether any
person or person in charge implemented reasonable and warranted measures,
the trier of fact shall consider, at least, the following:

(3) Each day that a violation of this section continues shall be
considered a separate and distinct offense. The fine for violation of this
Section shall be no less than $300.00 per incident per day and no more
than $750.00 per incident per day or the maximum per incident allowed by
the Code of Ordinances, whichever is greater. Such fine shall be a
judgment against the guilty person(s), owner(s), occupant(s), or person(s)
in charge jointly and severally. In establishing the amount of any fine,
the hearing officer may consider any of the following factors:

a. The actions taken by the person in charge/owner/occupant to mitigate or
correct the nuisance activities at the property.

b. The repeated or continuous nature of the problem.

c. The magnitude or gravity of the problem.

d. How cooperative the person in charge/owner/occupant is with the City of
Urbana in abating.

e. The cost to the city of investigating, correcting, or attempting to
correct the nuisance activities.

f. Any other factor deemed relevant by the trier of fact. Evidence of a
property's general reputation and/or the reputation of the persons in it,
or frequenting it, shall be admissible.

(4) If a person or person in charge is found guilty of a violation of this
section, the court shall, in addition to fining the party, order the
person in charge/owner/occupant to take reasonable, timely, and lawful
measures to abate the nuisance activity, including specifying deadlines
for the same.

Page 4 of 6

(5) In addition to the penalties above, the City of Urbana may, at its
discretion, take the following actions:

(a) Suspend the rental license at a criminal nuisance property, if such
property is rented or leased. If such license is suspended, the owner of
the property shall close and secure said property against all unauthorized
access, use, and occupancy for a period of not less than thirty (30) days,
or more than 180 days. If the City suspends the rental license of a
property, the person in charge, or the owner/occupant of the property, if
those persons are different than the person in charge, shall receive
written notice from the Community Development Department that his/her
license to operate rental property within the corporate/jurisdictional
limits of the City is suspended. The suspension of any license shall not
release or discharge the license holder from paying fees or fines under
this Code, nor shall such license holder be released from criminal
prosecution or further civil proceedings.

Section Two.

This Ordinance, as amended, shall be in full force and effect, and shall
be controlling, immediately upon its passage and approval.

Section Three.

All ordinances, or parts of ordinances thereof, which are in conflict with
the provisions of any portion of this Ordinance, as amended, are hereby
repealed to the extent of any conflict.

Section Four.

A prosecution which is pending on the effective date of this article and
which arose from a violation of an ordinance repealed by this article, or
a prosecution which is started within six (6) months after the effective
date of this article, arising from a violation of an ordinance repealed by
this article, shall be tried and determined exactly as if the ordinance
had not been repealed. If any portion of the foregoing amendment to
Chapter 15 shall be found, by a court of competent jurisdiction, to be
unlawful or unconstitutional, the remaining parts of this Ordinance will
remain in full force and effect.

Page 5 of 6 Page 6 of 6

Section Five.

This article applies to all properties within the corporate or
jurisdictional limits of the City of Urbana.

PASSED by the City Council this ________ day of ____________________,
______.

AYES:

NAYS:

ABSTAINS:

________________________________

Phyllis D. Clark, City Clerk

APPROVED by the Mayor this ________ day of _________________________,
______.

________________________________

Laurel Lunt Prussing, Mayor

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