[Peace-discuss] Re: Nuisance Ordinance and Racism

[John W.]

On Sun, Jan 4, 2009 at 11:12 AM, Joy <jgeo61 at sbcglobal.net> wrote:

 It's sad that MEDIATION is no where to be found here.  It should be.
>
> In Peace,
> Joy
>

Except that mediation is a purely voluntary procedure that requires the full
participation of all involved parties to make it work.  I personally have
never seen mediation actually work in any context.  I'm a fan of binding
arbitration myself.





>  ----- Original Message -----
> *From:* John W. <jbw292002 at gmail.com>
> *To:* Randall Cotton <recotton at earthlink.net>
> *Cc:* peace-discuss at lists.chambana.net
> *Sent:* Sunday, January 04, 2009 6:44 AM
> *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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