Dealing with Public Nuisance Ordinances

“This can’t be happening!”, John said, as he opened the mail and read the letter inside. John and his wife, Becky, had just endured a rough few months with their last tenants. The tenants had gotten arrested a few months ago for Possession of Marijuana. John and Becky learned of the arrested when they received a letter one day from the local police department that was titled Public Nuisance Warning. The letter notified them of the arrest of their tenants and told them that if it happened more than twice in year that they could be fined and their property could be shut down.

They immediately sent a notice to their tenants to correct the violation, and the tenants seemingly got rid of their illegal drugs. For a while things went fine. Then a couple of months later the same thing happened again. This time, the law didn’t give the tenants the chance to cure the problem, so John and Becky sent them a final termination notice. The tenants moved out without much trouble.

Fortunately, John and Becky had found a new family to take over the property under a new lease. The new family met all the requirements of John and Becky’s Resident Selection Policy, including having a pretty clean criminal history. That’s why John was shocked when he opened the mail and found another Public Nuisance notice, this time declaring his property a Public Nuisance and telling him that they would be fined $500.00 if the nuisance wasn’t abated.

Apparently, the family’s 16-year-old son had a party (“just a few friends”, as he called it) one weekend while his parents were gone. One of the friends apparently brought a bag of marijuana. When the neighbors called the police because of all the noise, they responded to the call and found a group of high school students with marijuana. Since it all occurred at John and Becky’s house, and because it was the third citation for illegal drugs within a year, the property was deemed to be a Public Nuisance.

John and Becky were at a loss. They needed the income from the property, and the last thing they needed was to pay a fine because of it. As they discussed their options with their attorney, they found out that, since the violation was actually committed by a guest, they couldn’t even evict their tenants, which seemed like the only way to abate the nuisance. They were stuck between the proverbial rock and a hard place.

Most cities have a Public Nuisance Ordinance, a law that holds property owners liable for criminal, annoying, or disturbing activity at their property, even if that activity is from tenants, rather than the owners. These ordinances are often poorly written and typically give city governments broad authority to severely penalize owners. Lexington’s Public Nuisance Ordinance is an example. Here are the details of the Lexington ordinance; most cities’ ordinances will be similar:

The Definition: A property is deemed a public nuisance if law enforcement officers have, more than two (2) times in a 12-month period, criminally cited or arrested someone, or executed a court-issued search warrant for any law governing any of the following:

1. Assault
2. sexual offenses
3. prostitution
4. controlled substances
5. weapons
6. gambling on the premises or
7. any felony

UPDATE (August 19, 2019) - The Lexington Police Department's policy is to reset the count for each tenant. So, if the same tenant gets more than two violations in a 12-month period, the owner could face penalties. But if a tenant gets two violations, and the next tenant gets a violation within the twelve-month period, there'd be no penalty because the count for the property re-set for the new tenant, even though it was within the 12-month period. 

Exception: Instances in which the owner or occupant is the victim of the crime and had no control over the criminal act, including domestic violence calls for service, shall not be considered in the number of occasions.

The Problem: The ordinance has three triggers: (1) citation, (2) arrest, or (3) execution of a search warrant for one of the specified crimes. This is a problem because none of these three triggers is evidence that a crime occurred. Citations and arrests are dismissed on a regular basis because they are not supported by adequate evidence of criminal activity, yet property owners are still held accountable for them.

The Penalties: Notice to Abate. If a property becomes a Public Nuisance, the owner is given a Notice to Abate the nuisance. If the owner fails to abate the nuisance, the owner could face the following penalties:

1. A citation assessing a civil fine of not less than five hundred dollars ($500.00) nor more than five thousand dollars ($5,000.00) per violation;
2. An order to close and vacate the premises to the extent necessary to abate the public nuisance;
3. Having the certificate of occupancy revoked; or
4. Any other legal remedy available under state law.

NOTE: These penalties do not automatically kick in on the third violation within a 12-month period; they only kick in after the owner is given notice that the property has become a Public Nuisance, then has failed to abate the nuisance. How do you abate the nuisance?

The Defense: It shall be a defense to a violation of this section if the owner has instituted an eviction proceeding within thirty (30) days of the notice or order against the offending tenant(s) and all occupants of the premises, and completes the eviction within seventy-five (75) days of commencement of the eviction proceeding or as soon thereafter as court procedure will allow.

In the event that judicial or quasi-judicial proceedings prohibit an owner from proceeding with an eviction, enforcement under this section will be stayed until the judicial or quasi-judicial proceeding is resolved. It shall be the responsibility of the owner to provide, in writing to the code official, notice that an eviction proceeding has been instituted and to provide such other proof of such proceeding as may reasonably be requested by the code official.

This section of the ordinance creates a safe harbor landlords who institute eviction proceedings against the offending tenants. However, given that the URLTA does not allow an eviction in situations where the tenant "adequately remedies" the violation, this safe harbor will not apply in many situations where the landlord's property has been deemed a Public Nuisance. Remember what I said about these ordinances being poorly written? This is what I mean.

It could be much worse, however. In 2011, City officials in Lexington attempted to greatly expand the number of offenses for which a property could be designated a nuisance; they attempted to include noise ordinance violations, failure to disperse, alcohol violations, fire code violations, parking violations, and harassment, among others. Fortunately, that expanded ordinance proposal was defeated through the efforts of local associations of rental owners and managers.

However, landlords still have to deal with the Public Nuisance Ordinance in many areas in Kentucky. Here’s what to do if you receive a Public Nuisance Warning about your property.  

WHAT TO DO IF YO GET A PUBLIC NUISANCE WARNING

1. Investigate the matter. Find out the name of the police officer involved and speak to them about what they saw. In Lexington, you can get the name of the officer by e-mailing the address listed on the warning: publicnuisance@lexingtonpolice.ky.gov. In other areas, you'll need to contact the local police department by calling the number listed on the warning letter. 
2. Make a decision. If the officer witnessed the tenant or their guest committing a crime that constitutes a violation of the lease, send a 14-day notice. If the violation is one that can be remedy, the notice should give the opportunity to remedy. If not, it should be a 14-day notice to vacate.
3. Guest violations. If the violation was committed by a guest, that violation can be remedied by the tenant banning the guest. The tenant would need to sign an agreement that they will ban the guest and will notify management immediately if they learn the guest has returned to the property.
4. Be cognizant of Domestic Violence. If your tenant is the victim of domestic violence, do not evict them as long as they are willing to ban the perpetrator.
5. Keep the police department apprised of your efforts. Let them know that you’ve sent a 14-day notice to the tenant, if the violation gets cured, whether the tenant was the victim of domestic violence, and whether an eviction gets completed. This will typically return your “count” for the property to zero.

In the end, John and Becky could likely abate the nuisance by requiring their tenants to ban the offending guest(s), an option that would not have been available had the tenant’s son been the one cited or arrested. These types of stories show the problems that Public Nuisance Ordinances can create for landlords. If you have questions about your particular property, contact your friendly neighborhood attorney. 

If you're interested in learning more about these issues, I still have a few spots open for my upcoming Landlord Education Conference. Click here for more information and to get registered.