NUISANCE Ordinance- 3 Strikes You're Out for Landlords

[John Viglianco]

The 5/13/05 LakewoodAlive newsletter asked readers to "speak publicly about their position" on the upcoming NUISANCE ordinance. The LakewoodAlive newsletter states that this ordinance "... is intended to penalize repeated nuisance offenders through fines which will cover the city's cost of monitoring such activity."



I strongly disagree with this ordinance. To fine innocent landlords for the repeated infractions of their tenants is WRONG! Landlords provide services in return for the rent that they are paid. This does not make them the consience of their tenants.



1. If their tenants have frequent run-ins with the police, how is a landlord supposed to rule over the tenant? The answer, according to this ordinance, is to impose a fine on the innocent landlord. The landlord is then supposed to apply the fine to the tenant's security deposit or threaten eviction. Scofflaws who have many legal problems often cheat the landlord out of their final month payment, assuming the Security Deposit covers them. Evictions are a long drawn-out process. The landlord, not the perpetrator, is being punished.



2. Fine the repeat offenders according to the number of infractions that they commit. The guilty parties should pay, and pay more each time they run into trouble. The Legal System is supposed to mete out penalties to lawbreakers, not their landlords or employers.



3. What about homeowners that are habitual troublemakers? Shouldn't they be assessed a NUISANCE FEE also.?



4. Where is the WEIGHING function on the type of infractions? Fireworks, alcohol, gambling, noise, and a felony all seem to count equally as one nuisance. Can a rowdy Fourth of July party collect a triple-- alcohol, fireworks, and noise -- on one day? This could be a NUISANCE GRAND SLAM!



5. This law would create a record-keeping nightmare for the Police Dept.



6. If a landlord has a large apartment building, are they fined based on the number of infractions/tenant; or is it based on the number of infractions against the building?



7. This ordinance is based on laws passed in Cleveland and Shaker Hts. So our fellow "First-Ringers" have put this law on the books. How successful have these laws actually been? How much revenue has actually been been collected from the landlords? How much extra has been spent in additional police manpower and computers to keep track of the "three strikes" in a 12 month window.



8. Why don't we fine the PARENTS of the nuisance perpetrators for raising bad offspring. Their rearing mistakes are more to blame than the owner of an apartment building!



This is a bad and unnecessary ordinance.

[Stan Austin]

John--- I agree with you totally. You should read your comments at the Council meeting. I think it would add support to those members who feel unconfortable with the propsal.

Stan

[Jim O'Bryan]

One of many questions I have about this ordinance is how it puts the landlord between a rock and a hard place. State law makes it illegal for us to go into/onto our rental property without 24 hours notice. How does that play into the whole deal.



Also I have had really good renters that have been with us for 6 years. They pay on time, keep the place neat, actively participate in the community and have two very large parties every year. Now they generally invite most of the neighborhood.



The party pales in comparison to some thrown by our Law Director and his brother, but generally run about as long.(36 hours!)



Maybe we can get RPD involved in this discussion?





Jim O'Bryan

[Stephen Calhoun]

As an east side renter observing the Observer, I have a broad question to ask in response to this very good example.

What are the details in how such an ordinance comes to be enacted?

Presumably it is someone's bright idea to solve a problem. Presumably, whether it was or was not, some version of 'reasoning it through' comes into play.

So, to flesh out my inquiry, how much real SKILL goes into defining the problem within the system it occurs; understanding and analyzing what both causes and could be the options for resolution; and, what role smart citizens have in this process.

I'd like you to scrape underneath any cynicism about politicians et al in providing me with a rich description of how intelligence currently figures into problem solving inLakewood.

[Jeff Endress]

Just an interesting observation/experience.....

We were unfortunate enough to have some neighbors a few years back with whom we did not get along (further discussion to be included in the novel/screenplay that I hope to write some day).....

They had a practice of calling the police, building dept., sidewalk inspector, childrens' services (or any body else who they could think of) to use that governmental body as a tool of harrassment. I think this ordinance encourages that type of activity.....search out your neighbors' cracked sidewalk....dead tree....once a year party.....and if you can nail them 3X, you win!

I would think that there we should have some reciprocal provisions (The pot calling the kettle black anti-harassment provisions). You call the sidewalk inspector about your neighbor's cracked sidewalk? Fine, but while he's there he will also inspect YOURS. Call building Dept. about peeling exterior paint? Fine, and while they're out, they'll do a "walk around"your home. Would certainly cutail the use of city officials to further neighbor harassmaent.

As far as Landlords are concerned, I think there has to be some kind of notice/due process protections.

Jeff

Jeff

[Jim O'Bryan]

Jeff

I believe that the city used to have such a policy. If you called on a neighbor, then they would check that neighbor, the neighbor on each side, and on on the other side of the street. However I am not sure that is the policy any longer.

I know of one case that is going to become a large story where someone called the city, and complained about some of their animals. While they asked who called in, they were told that the person had turned off caller id and they had no idea who it was.

Now what is most interesting is that the immediate neighbors all knew and loved the animals in question. The next outer ring of residents contained some truly undesirable neighbors. To my limited knowledge, they came, they saw, they are looking at laws, and nothing more has happened. As this is an ongoing case it will be interesting to see what happens.

FWIW


Jim O'Bryan

[Mary Anne Crampton]

Below is a copy of the ordinance proposed by Councilman Demro.

The LakewoodAlive newsletter asked members to read the entire document, which was included in the newsletter, and to contact their council representatives with their position on the subject.

I believe Paragraph (e) and sub-paragraphs (1), (2) and (3) deal with the issue of absentee landlords.

Mary Anne




PROPOSED ORDINANCE NO. 69-04



BY: Demro



Amending the Lakewood Codified Ordinances to add new Section _________ relative to the abatement of criminal activity nuisances and the collection of costs to the Police Department of responding to such nuisances, and declaring an emergency.



WHEREAS, the City has by ordinance declared a number of actions and conditions as nuisances, and the City may abate many of such nuisances and the costs may be assessed on the property on which the nuisance has occurred, or from which the nuisance has originated; and



WHEREAS, the residents of the City have been adversely affected by criminal activity that occurs repeatedly at, or originating from, certain residential and commercial properties in the City; and



WHEREAS, repeated violations of law stemming from a single property or business can place an undue burden on the Cityís safety resources, and therefore, an undue burden on taxpayers; and although most property owners and operators of businesses take responsibility for activities on their property, some property owners and operators of business fail to take aggressive action, or any action at all, to deal with such nuisance activities by people whom they have allowed to live at or to visit their property, or patronize their businesses; and



WHEREAS, such repeated criminal activities greatly interfere with the comfortable enjoyment of life and property for the neighbors of such nuisance properties, and lead to the deterioration of neighborhoods, as responsible homeowners move out of neighborhoods where such activity recurs.



NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Lakewood, State of Ohio:



Section 1. The Codified Ordinances of the City of Lakewood are hereby amended to include the following new Section:



Section ____________ - Criminal Activity Nuisances



(a) The following activities occurring on residential or commercial property, and engaged in by an owner, occupant or invitee of the owner, occupant or person in charge of commercial or residential property (including individual apartment and condominium units), are hereby declared to be public nuisances:

(1) Any animal violations under Sections 505.02 (dogs running at large), 505.13, 505.15 and 505.20(animal noise, excrement and biting), 505.18 or Chapter 506 (dangerous or vicious animals), 505.07 (killing or injuring animals), 505.09 (cruelty to animals) of the Codified Ordinances;



(2) Any disorderly conduct, disturbance of the peace or other violation of Chapter 509 of the Codified Ordinances;



(3) Any drug abuse violation under Chapter 513 of the Codified Ordinances;



(4) Any gambling violation under Chapter 517 of the Codified Ordinances;



(5) Any health, safety, or sanitation violation under Chapter 521, 1775 or 1779 of the Codified Ordinances;



(6) Any obstruction of official business violation under Section 525.07 of the Codified Ordinances;



(7) Any alcohol violations under Chapter 529 of the Codified Ordinances;



(8) Any sex offenses under Sections 533.07 (public indecency), 533.08 (procuring), 533.09 (soliciting), or 533.10 (prostitution) of the Codified Ordinances;



(9) Any offense against property under Sections 541.03 (criminal damaging or endangering) or 541.04 (criminal mischief) of the Codified Ordinances;



(10) Any littering or deposition of waste under Section 521.08 of the Codified Ordinances;



(11) Any theft violation under Sections 545.05 (petty theft), 545.08 (unauthorized use of property), of the Codified Ordinances;



(12) Any weapons, explosives, firearm or handgun violation under Chapters 549 of the Codified Ordinances;



(13) Any noise violation under Chapter 515 of the Codified

Ordinances;



(14) Any fireworks violation under Section 549.10 of the Codified

Ordinances;



(15) Any offense that is a felony under the Ohio Revised Code.



(b) For purposes of this Section, the occurrence of a nuisance activity means that a citation has been issued, or an arrest has been made for one or more of the offenses or activities listed in part (a).



(c) The Chief of Police or his designee, upon finding that two or more nuisance activities as outlined in Section (a) have occurred within a twelve month period, and that a citation has been issued or an arrest has been made for said nuisance activity or activities, may cause a written notice and order to be served on the owner of the property. The notice shall declare that if a third nuisance activity as outlined in Section (a) occurs within a twelve month period of the first nuisance activity, such property shall be deemed a nuisance property. The notice and order shall set forth the nature of the nuisances, the estimated costs to abate any future nuisance, and state that the owner may avoid being charged the costs of abatement by taking steps to prevent any further nuisance activity as set forth in this Section. The notice shall further state that the City may abate the nuisance by responding to the activities using administrative and law enforcement actions, and the costs of such abatement shall be assessed on the nuisance property. Notice shall be served pursuant to the Ohio Rules of Civil Procedure.



(d) If a third nuisance activity as declared in this Section occurs within twelve months after the first of the two nuisance activities referred to in subsection (c), the City may abate the nuisance by responding to the activity using administrative and law enforcement actions, and the costs of such abatement shall be assessed on the nuisance property. The costs shall be calculated as set forth in subsection (f) of this Section. The City shall provide notice to the owner of the nuisance property to pay the costs of abatement at least thirty (30) days before such costs are certified to the County for assessment against the property, and such notice shall contain a description of the nuisance activity that is the basis for the notice of intent to assess the property, and the cost to abate. If the same is not paid within thirty (30) days of the mailing of the notice, such amount may be certified to the County Auditor for collection as other taxes and assessments are collected, or the City may seek recovery of such costs by civil action against the property owner involved. Notice shall be served pursuant to the Ohio Rules of Civil Procedure.





(e) The owner of a nuisance property who receives a notice from the Chief of Police or his designee pursuant to this Section may appeal such notice by submitting a written request for reconsideration to the Law Department within (30) days of the date of the notice. If the Director of Law, or his or her designee(s)finds that the facts presented do not support the declaration of a nuisance, the Director shall rescind the notice. Any such appeal shall not stay any actions by the City to abate the first or any subsequent nuisance activity. In any such appeal, the City must show by a preponderance of the evidence that each violation stated in the notice being appealed has occurred, and that the declaration of the property as a nuisance property or of the intent of the City to assess the property for abatement costs, whichever is applicable, is justified. The City shall be deemed to have failed to have met this standard if the owner demonstrates by a preponderance of evidence that:



(1) He or she was not the owner at the time of any of the nuisance activity that is the basis of the notice; or



(2) He or she had knowledge of the nuisance activity, but has promptly and vigorously taken all actions necessary to abate each nuisance including, without limitation, compliance with the requirements of Ohio Revised Code Sections 5321.17 (C) and 5321.04 (A) (9), or



(3) He or she had no knowledge of the nuisance activity and could not, with reasonable care and diligence, have known of the nuisance activity; and upon receipt of the notice of the declaration of the property as a nuisance property, he or she promptly took all actions necessary to abate the nuisance including, without limitation, compliance with the requirements of Ohio Revised Code Sections 5321.17 (C) and 5321.04 (A) (9).



(f) Costs of abatement shall be a minimum of one hundred dollars ($100.00) upon the first violation of this section, two hundred and fifty dollars ($250.00) on the second violation of this section, and five hundred dollars ($500.00) on each subsequent violation of this section.



(g) The declaration of a nuisance property, an order to abate a nuisance, or the assessment of costs by the City on a property, does not affect or limit the Cityís right or authority to bring criminal prosecution or other legal action against any person for violation of the Cityís ordinances.







Section 2. This ordinance is hereby declared to be an emergency measure necessary for the immediate preservation of the public peace, health, safety and welfare for the reason that it is necessary in the current operation of the City and, therefore, this ordinance shall take effect immediately upon its enactment and approval by the Mayor.





Adopted: ___________________________ _________________________

President



_________________________

Clerk



Approved: __________________________ _________________________

Mayor

[Ryan Patrick Demro]

Observers,

I am glad to see discussion going on about this law. It has been a year in the making and has had several hearings where interested parties presented their cases. All of the arguments that have been lodged in this forum, for or against, have been considered by the committee. The Rules and Ordinances Committee consists of Denis Dunn, chairman and myself. Mary Louise Madigan also sat in on several meetings to give input. Bob Seelie and Pat Corrigan attended one hearing early on in the process. Neither Michael Dever nor Ed Fitzgerald have ever attended a meeting on this issue or voiced any comments or concerns to the committee. The committee voted unanimously to recommend passage to the entire council in a 2-0 vote. This was done after concerns from the Chamber of Commerce, the Domestic Violence Center of Cleveland, the Cleveland Tenants Organization, the Office of the Police Chief and landlords associations had been addressed. NOT ONE OF THESE GROUPS RAISED OBJECTIONS UPON FINAL PASSAGE in committee.

As far as due process goes, a citation must be given in every instance before a letter is sent to tenant/landlord. It is important to note that this person might be the same in many cases as THIS ORDINANCE APPLIES TO ALL LANDOWNERS, be they live in, absentee, or commercial. Yes, this does apply to businesses. Take Johnny Malloy's for example, in Novermber '04 the police had to visit 7 times (4 disturbances, 2 assaults, and 1 citizen complaint). We could take 1333 Hall Avenue, 6 disturbances, 1 weapons offense and 1 general assist. The list goes on, but to sum it up, there are less than 35 properties throughout the city that would qualify for this ordinance at any one time. For those of you concerned about landlords, there is a shield provision in the ordinance. Responsible landlords who take constructive action within Ohio Law to abate the nuisance or prevent future occurences would be held harmless. This provision provides them with an affirmative defense in court. So no matter what the instance, each violator will get their day with Judge Carroll to explain their case. As for harrassment provisions, Jim O. has the building department policy correct. If you call, you better expect us to be looking at your house. I am told that the dept. does a 360 degree for other violations in the area when they go out on inspection. To Mr. Endress, the police will use their best judgement in the application of this law. As I said before, a citation must be issued and the activity must be verified.

If you talk with the police chief he will tell you that they know who the chronic offenders are and that this would be a useful tool for them in the future. If you talk with the police chiefs in Shaker and Cleveland Heights you will find that they have experienced workload reduction as a result and they have quieted some rowdy neighborhoods. This law is a combination of the ordinances from these cities. In addition, it is a virtual carbon copy of laws that are restoring peace to neighborhoods in Milwaukee, Des Moines and S. Euclid.

As a city we must reinforce our community standards for quality of life. I don't know about you down on Edgewater Mr. Viglianco, but most of the rowdy tenants or businesses do not reside in your neck of the woods. Ask Mrs. Tabor on Rosewood Avenue about here experiences, I can give you several other residences if necessary.

I expect property owners throughout the city to use their best judgement when deciding to allow certain activities to occur on their property. When they make the wrong decision they need to be held accountable. Anyone who seeks to protect landowners who knowingly allow nuisance activity to occur on their property has the wrong vision for Lakewood's future. If you wonder why people put out a for sale sign, I can tell you from experience that these incidents weigh heavily in a city where your nearest neighbor is less than 10 feet away.

[Ryan Patrick Demro]

My apologies, I left out a few points that were brought up.

1) This law is not meant to be a revenue enhancer for the city.

2) Citations would have to take place separately (no nuisance grand
slams)

3) Fines are based per unit in large buildings, so if there is a problem unit
that can be addressed.

[dl meckes]

Folks, if you're posting something that has a list, particularly when the list items are demarcated by parentheses, please remember to DISABLE SMILIES!

[Jim O'Bryan]

Ryan Patrick Demro

Two examples for you to respond to.

1) My renters once a year party. Is their a time limit on the three strikes. Three strikes over ? What about three strikes, but covers two different renters? One has two strikes, moves out and the next one has a moving in party and the third strike comes down?

2) I suspect something fishy is going on in my rental. I stop in after 24 hour notice and find nothing wrong. Then the police raid the place not needing 24 hour notice and find them guilty of something. where does this leave me as the landlord.

I appreciate you taking the time to address this. I am sorry if this has been covered in meetings before.

Thanks in advance.

Jim O'Bryan

[Ryan Patrick Demro]

Jim,
Good questions. As to your first about the "strikes." The strikes accumulate within a 12 month period. So if unit A gets a "strike" in Jan., Feb. and then August, it counts. The "strikes" are applicable to the tenant, not the unit. So if a rowdy one moves out and a new rowdy one moves in it would be dealt with separately.

As far as your raid scenario goes, I am not certain how that would be applicable. This really isn't a law that would be related to raids. I think we need to use the case of a nuisance dog. Let's pretend the dog at your rental continually barks. Day in day out. Police/animal warden come over to write a citation. You, along with your tenant get a letter saying that this is a nuisance and you need to shut it up or further penalities will be assessed. If you send a letter to your tenant reminding them that animals are not permitted under the lease agreement the that is one thing. Let us pretend that they are allowed. Then you send a letter saying that if you receive another letter they will be evicted based on violations of municipal code. This is where the affirmative defense comes in, you warned them. Upon third notice they get fined, you do not, and eveiction proceedings begin. I hope I have characterized this correctly.

[Donald Farris]

Hi,
I am not in favor of this proposal. It seems like a bad solution to a problem. Why punish the landlord for activities the landlord is not responsible for?

It seems to me that there is a problem with rowdy bar patrons that should be handled by the police with the rowdy bar patrons. I don't want to be punished because some rowdy bar patrons take a trip to my parking lot to urinate. What am I supposed to do about this? Call the police? That would count against me and I already know that unless guns are drawn along with weeners they won't arrive before the rowdy bar patrons continue their walk to their car.

It seems to me that this proposal is a smokescreen to mask the ineffectiveness of our Council and Police in dealing with the rowdy bar patrons.

[Jim O'Bryan]

Ryan Patrick Demro

Thanks for the quick response.

The Dog scenerio seems very reasonable.

Will the courts back us up on any evictions if needed?

In other words if I have a tennent with two strikes, can I get a promise from the courts to fast track the eviction?


Jim O'Bryan

[Lynn Farris]

First of all, I want to thank Ryan for looking at this issue. It is a tough one. I think there needs to be some modifications and I called Ryan about it.

1) Jim, your suggestion is good. If the court won't fast track the eviction, if the landlord is proceeding, the violation should not be against the landlord, if the court is slow.

2) Obviously we are looking at this personally, but people whose property abut successful bars, have problems. I don't feel that we are responsible for drunks coming into our lot and urinating, when the city council refused to allow us to chain our parking shut by closing the alley. Likewise, we have fights and you name it. Harry Buffalo has a security guard, but the police come down to break up fights that spill over from all the bars into our lots, other lots and front yards. We are the victims, the culprits are the out of control drunks and the bar owners who habitually overserve.

Figure out how to get around a few problems and I'm for your proposal.