Presenter
Presented by Mr. Bodack
Title
Ordinance supplementing the Pittsburgh Code, Title Ten, Buildings, by adding chapter 1017, Nuisance Abatement.
Body
Be it resolved by the Council of the City of Pittsburgh as follows:
Section 1. Supplementing the Pittsburgh Code, Title Ten, Buildings, by adding Chapter 1017, Nuisance Abatement
Legislative Findings
1) There is a growing crisis in the City of Pittsburgh which is plaguing our residential neighborhoods and public housing communities.
2) The sale of use of illegal drugs have caused an increase in crime and violence and, deterioration in the habitability of housing and rental accommodations as well as diminished property values.
3) Currently there are inadequate incentives for property owners to take a more active role in preventing the use of their property for the manufacture use, sale, storage or distribution of drugs.
4) The City of Pittsburgh has a well-deserved reputation as one of the safest cities in the United States which is due, in no small way, to the efforts of community organizations, Block Watches and other citizen initiatives.
5) Part of the success of the City's efforts to rid itself of drug-related nuisances will be increased involvement of citizens in making their communities safer.
Section 2. Definitions
The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:
a) "Community-based organization". Any group, whether incorporated or unincorporated, affiliated with or organized for the benefit of one or more communities or neighborhoods containing the alleged drug-nuisance, or any group organized to benefit the quality of life in a residential area containing the alleged drug nuisance.
b) "Controlled Substance Ordinance". The Pennsylvania Crimes Code, Chapter 18.
c) "Drug-related nuisance". Any property, in whole or in part, used or intended to be used to facilitate any violation of the Pennsylvania Controlled Substance Ordinance; and the use, sale, distribution, possession, storage, transportation, or manufacture of any controlled substance in violation of the Controlled Substance Ordinance.
d) "Manufacturing". The production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin or independent means of chemical synthesis, including any packaging or repackaging of the drug or labeling or relabeling of its container.
e) "Owner". An individual, corporation, partnership, trust association, joint venture, or any other business entity and respective agents of such individuals or entities, in whom is vested all or part of the title to the property alleged to be a drug-related nuisance.
f) "Property". Tangible real property, or an interest in real property, including an interest in any lease hold, license or real estate, such as any house, apartment building, condominium, cooperative, office building, store, restaurant, tavern, nightclub or warehouse, and the land extending to the boundaries of the lot on which such structure is situated including the adjacent right or rights-of-way, and anything growing on, affixed, or found on that land and the adjacent right or rights-of-way.
g) "Tenant". A person who resides in or occupies property belonging to an owner pursuant to a lease agreement, or pursuant to a tenancy under the common law.
Section 3. Nuisance Abatement
That the Council of the City of Pittsburgh hereby supplements the Pittsburgh Code, Title Ten, Buildings, by adding Chapter 1017, Nuisance Abatement, as follows:
1017.01 Action to Abate
Wherever there is reason to believe that a drug-related nuisance exists, the district attorney, the City Solicitor, a resident of the City of Pittsburgh, including a tenant of the property, or any community-based organization may file an action in City Housing Court to abate, enjoin, and prevent the drug related nuisance. Such actions shall be commenced by the filing of a complaint alleging the facts constituting the drug-related nuisance.
1017.02 Complaint
a) Adverse impact. The complaint or affidavit attached thereto shall describe the adverse impact associated with the drug nuisance upon the surrounding neighborhood. Adverse impact includes:
1) Diminished property value.
2) Increased fear of residents to walk through or in public areas, including sidewalks streets and parks.
3) Increased volume of vehicular and pedestrian traffic to and from the property.
4) An increase in the number of city emergency medical service or police calls to the property, which is related to the use of drugs, or to violence stemming from drug-related activity.
5) Bothersome solicitors or approaches by strangers wishing to sell drugs, or the aggressive solicitation of alms, on or near the property.
6) The display of dangerous weapons on or near the property.
7) Investigative purchase of drugs by law enforcement officers on or near the property.
8) Arrests of persons on or near the property
9) City Code violations relating to the property.
10) County of Allegheny Health Code violations relating to the property.
11) Accumulated trash and refuse in common areas on or adjacent to the property.
12) Unsecured entryway on the property.
13) Loitering.
14) Unreasonable noise.
15) Search warrants served or executed at the property.
16) The number of complaints made to law enforcement and other city officials about the alleged illegal activity associated with the property.
17) The discharge of a firearm on the property.
18) Violation of zoning laws or regulations at the property.
b) Attempts to notify owner. The complaint shall contain a description of attempts made by the plaintiff, or any other person or entity, to notify the owner of the property of the drug-related nuisance and the resulting adverse impact. No compliant shall be filed unless there has been at least one written notice delivered to the owner of the alleged drug-related nuisance by registered mail, return receipt requested, not less than fourteen (14) days prior to the filing of the complaint.
c) Complaints by Private Industry. When an action is brought under this Ordinance by a private individual, the complaint shall be supported by at least five residents residing or owning real property within 1000 feet of the premises alleged to be a nuisance. Said support shall be in the form of an affidavit testifying to the fact of the affidavit's residence within 1000 feet of the alleged drug-related nuisance, and that the affiants have witnessed the alleged nuisance, and are aware of the adverse impact of the alleged nuisance.
1017.03 Service of the Complaint
A copy of the summons and complaint shall be served upon the defendant at least five business days prior to the first hearing in the action. Service shall be made in accordance with Pennsylvania law. If personal service cannot be made, service may be made by posting papers at the property. If service is made by posting at the property, a copy of the summons and complaint shall be mailed to the last known address, if any, of the defendant.
1017.04 Property Deemed To Be A Drug-Related Nuisance
A nuisance under this Act shall include, but shall not be limited to, conduct unlawful in itself or unreasonable under the circumstances, knowingly or recklessly creating or maintaining a condition which endangers the safety or health of persons not occupying the property alleged to be a nuisance and knowingly or recklessly conducting or maintaining any premises or place where the persons gather for the purposes of engaging in unlawful conduct.
For purposes of the Section, "knowingly" shall mean actual awareness, or "should reasonably have known".
1017.05 Civil Penalties
In any Action brought under this statute, the complaint(s) may request, and the court at its discretion may order, a civil penalty of up to $1000 for each day the nuisance has been conducted, said penalty shall be payable to the general fund of the City of Pittsburgh.
1017.06 Protection of Witnesses
If proof of the existence of drug-related nuisance depends, in whole or in part, upon the affidavits of witnesses who are not law enforcement officers, upon showing of prior threats of violence or acts of violence by a defendant or other person using the property alleged to be a nuisance, the Court may issue orders to protect those witnesses, including, but not limited to, nondisclosure of name, address or any other identifying information.
1017.07 Conviction Not Required
A previous conviction of the Defendant, or anyone, shall not be required to demonstrate a drug-related nuisance.
1017.08 Security
No security bond shall be required to issue a preliminary injunction or temporary restraining order sought by the attorney general, the district attorney, or the City Solicitor. Otherwise, at the Court's discretion, a security bond may be required to issue a preliminary injunction or temporary restraining order. Where such relief is issued after an evidentiary hearing at which witnesses are subject to cross examination, the court shall not require a security bond in excess $1000.00.
1017.09 Evidence of Reputation
In an Action brought under this Act, evidence of general reputation of the defendant property is admissible for the purpose of proving the knowledge of the defendant of such nuisance.
1017.10 Dismissal of Action
If a compliant is filed by a private citizen, it may not be dismissed except upon a sworn statement by the complainant and his attorney, setting forth the reason why the Action should be dismissed. A copy of that sworn statement shall be sent to the City Solicitor at least seven days prior to its presentment to the Court.
If the Court is of the opinion that the Action ought not to be dismissed, it may direct the prosecuting attorney to prosecute said Action to judgment.
Any citizen of Pittsburgh or interested community-based organization may be substituted for the complainant and prosecute said action to judgment.
1017.11 Judgment remedies
a) Burden of proof. The plaintiff must establish that a drug-related nuisance exists by a preponderance of the evidence.
b) Relief. If the existence of a drug-related nuisance is found, the judgment may include actual damages and an injunction to restrain, abate, and prevent continuance or recurrence of the drug-related nuisance. The court may grant declaratory relief, mandatory orders, or any other relief deemed necessary to accomplish the purposes of the injunction and enforce the same.
c) No punitive damages are recoverable under this Ordinance.
d) Additional remedies. If the existence of a drug-related nuisance is found, the court shall have the additional power to fashion any one of the following remedies:
1) Assess damages against the defendant in favor of the plaintiff, of not less than $300.00 nor more than $1000.00 or a lien on the property.
2) Assess costs of the action against the defendant.
3) Assess reasonable attorney fees.
4) When a government agency is a plaintiff in the action, asses a fine against the defendant of not less than $500.00 nor more than $5000.00.
5) Order the owner to clean up the property and make repair upon the property.
6) Suspend or revoke any business, housing, professional or operational license.
7) Order the owner to make additional reasonable expenditures upon the property, including, but not limited to, installing secure locks on the doors, hiring private security personnel, increase lighting in common areas, and using videotaped surveillance of the property and adjacent alleyways, sidewalks, and parking lots.
8) Order all rental income from the property to be placed in an escrow account with the court for up to ninety days or until the drug-related nuisance is abated.
9) Order all rental income for property transferred to a trustee, to be appointed by the Court, who shall be empowered to use the rental income to make reasonable expenditures related to the property in order to abate the drug-related nuisance.
10) Order the suspension of any City subsidies payable to the owners of the property, including but not limited to, tenant assistance payments to landlords, until the nuisance is abated.
11) Allow the plaintiff to seal the property with the cost of sealing to be paid by the defendant.
e) Factors to consider. In making an order under subsection (d), the Court shall consider among others, the following factors:
1) The effect the drug-related nuisance has had on the community.
2) The number of people residing at the property.
3) The proximity of the property to other residential structures.
4) The number of times the property has been cited for housing code of health code violations.
5) The number of times the owner has been notified of drug-related problems at the property.
6) The extent and duration of the drug-related nuisance at the time of the Order.
7) Prior efforts or lack of effort by the defendant to abate the drug-related nuisance.
8) The owner's involvement in the drug-related nuisance.
9) The costs incurred by the City, community-based organization, individuals or their attorneys, in investigating, correcting, or attempting to correct the drug-related nuisance.
10) Whether the drug-related nuisance was continuous or recurring.
11) The economic or financial benefit accruing (or likely to accrue) to the defendant as a result of the conditions constituting the drug nuisance.
12) Any other factor the Court deems relevant.
f) In making an order under subsection (e), the Court shall not consider the lack of action by other property owners to abate alleged drug nuisances.
g) If the building is ordered closed, the Court shall appoint a receiver to sell all of the furnishings and fixtures located in the building which are owned by the building owner, and place the funds from the sale in an escrow account to satisfy the judgment.
1017.12 Violation of Abatement Orders.
a) Contempt. A violation of any court order issued under this Ordinance is punishable as a contempt of court by a fine or not less than $500.00 nor more than $10,000.00 or by imprisonment for not more than one year, or both. Evidence concerning the duration and repetitive nature of the violations shall be considered by the court in determining the penalty for contempt.
b) Additional Orders. Upon finding that the defendant has willfully violated an order issued under this Ordinance, the Court shall also be empowered to issue any additional orders necessary to abate the drug-related nuisance.
c) No knowledge and Abatement. The court may suspend the effectiveness of an order of abatement for no more than ninety days if the owner of the property establishes that he or she had no knowledge whatsoever of the drug-related nuisance and could not reasonably be expected to have such knowledge, and the owner avers under oath that he or she will immediately undertake specified measures to abate the nuisance for the following two-year period.
An abatement order under this subsection may not be issued for the benefit of a defendant who has been found in contempt of court as part of the same action.
An order under this subsection is a suspension, and is not a withdrawal of the order.
d) Cancellation of the Orders. The court shall cancel the order of the abatement is the owner of the property satisfies the court that the drug-related nuisance has been abated for the past ninety days, corrects all housing code and health code violations, and posts a bond in an amount determined by the Court, which will be immediately forfeitable if the drug-related nuisance recurs during the following three-year period.
Section 4. Severability
If any section, sentence, clause or phrase of this Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, then said holding shall in no way affect the validity of the remaining portions of this Ordinance.
Section 5. Effective Date
This Ordinance shall become effective in sixty days.