(A) Purpose. The Common Council of the city finds it to be in the best interests of the residents of the city and the general public to provide for the regulation of conduct it deems to be offensive, to prevent vice, disorder and immorality; and to promote public peace, health and safety, and to this end, the Common Council enacts this section.
(B) Permitting the use of real estate for illicit drug activity, gambling or prostitution. No owner of real estate located in the city shall knowingly allow the real estate to be used as a site for any use or sale of illicit narcotics or controlled dangerous substances, gambling or prostitution. For the purposes of this section, an owner of real estate is defined as any person who, alone, jointly or severally with others, shall have legal or equitable title or other possessory interest in any real property on which residential, commercial or industrial improvements of any kind or nature are located, including a purchaser under a Contract for Conditional Sale of Real Estate commonly known as a Land Contract, and a lessee, sub-lessee, renter, or tenant who is allowing another person to occupy the dwelling or dwelling unit. The definition of owner shall not include a mortgage lien holder or other lien holder holding an interest which secures a debt or judgement, or third party non-employees using real estate for illicit drug activity, gambling or prostitution before or after the company's regular business hours.
(C) Discrimination forbidden. Nothing in this section shall be construed to encourage or authorize the discrimination by lessors against any persons based upon race, creed, religion, sex, age or national origin.
(D) Reports, investigations and notices by the Police Department.
(1) A complaint or report of suspected illegal activities constituting the use or sale of narcotics or controlled substances, or gambling, prostitution, or conduct constituting a nuisance pursuant to state law, by tenants, occupants and/or their visitors, guests or invitees as observed by the lessor, third persons such as other tenants of the property, or persons residing or working in the vicinity of the property, or city officials, and/or representatives of agencies and/or departments of the city shall be submitted to the office of Narcotics and Vice Division of the Police Department of the city and each such report or complaint shall be individually logged in that office.
(2) Upon receipt of any report or complaint of such suspected illegal activities on real estate premises,the Police Department may conduct a further investigation.
(3) Upon completion of investigation by the Police Department revealing that such suspected illegal activity is taking place at a particular premises, the Police Department may send a Notice of Investigation to the owner of the real estate and a copy to the tenant/occupant whose premise is the subject of the investigation, by certified mail, return receipt requested, informing the owner that the investigation revealed suspected illegal activity and the fact that there is an on-going investigation. The Notice of Investigation shall inform the owner that it is a violation of the Fort Wayne Code for the owner of real estate to knowingly permit its real estate to be used as a site for any use or sale of illicit narcotics or controlled dangerous substances, gambling or prostitution. The Notice of Investigation shall also state that the city may initiate enforcement proceedings against the owner of the real estate if the suspected illegal activity does not cease. Finally, the Notice of Investigation shall advise that it is a defense to a proceeding to enforce this section if the owner of real estate institutes and completes eviction proceedings in compliance with division (F) of this section against the person suspected of engaging in the criminal conduct giving rise to the Notice of Investigation. The Notice of Investigation shall further include a request of the property owner to whom the letter is addressed to specify in writing information concerning the existence of any Contract for Conditional Sale of Real Estate, commonly known as a Land Contract, setting forth the name, address, and phone number of the purchaser under the Land Contract, and further specifying any other person who has a legal, equitable, or possessory interest in the dwelling or dwelling unit and the pertinent information, including, but not limited to, name, address, and phone number with respect to those individuals.
(E) Effect of giving Notice of Investigation.
(1) If a proceeding to enforce a violation of this section is commenced against an owner of real estate at least 30 days after the land owner's receipt of a Notice of Investigation and within 60 days of the owner's receipt of a Notice of Investigation, the landowner's receipt of the Notice of Investigation creates a presumption that the landowner has knowledge that the tenant/occupant suspected to have been engaged in illegal activity has in fact engaged in such activity. Therefore, under such circumstances, the owner of real estate will bear the burden of proving by a preponderance of the evidence that the owner lacked knowledge of the suspected illegal behavior.
(F) Eviction proceedings as a defense under certain circumstances.
(1) An enforcement action against a person charged with a violation of this section after having received a Notice of Investigation shall be subject to an affirmative defense as set forth in subdivision (2) below.
(2) The affirmative defense shall be established if the person charged with a violation:
(a) Has, within 30 days of receipt of a Notice of Investigation instituted eviction proceedings against the tenant whose suspected criminal activities would otherwise give rise to potential liability under this section;
(b) Has completed the eviction proceedings within 30 days of commencement of the proceedings.
(3) An affirmative defense shall also be available to a person who has instituted an eviction proceeding within 30 days of receipt of a Notice of Investigation and has completed the eviction proceeding within 60 days of the commencement of the proceedings, so long as the person initiating the eviction proceedings does not, by requesting a continuance, failing to appear at a hearing, or otherwise delaying the proceedings cause the eviction proceedings to remain open for a period of more than 30 days.
(G) Filing of criminal charges. Charging an ]owner of real estate with a violation of this section shall be an adjunct to, and not substitution for, any criminal charges filed as a result of investigation by the Police Department against occupants or tenants of that owner's real estate premises for use or sale of illicit drugs or controlled dangerous substances, gambling, prostitution or conduct constituting a nuisance pursuant to state law.
(H) Limited indemnification of owners of real estate. The city shall provide a limited indemnification to an owner of real estate located in the city, subject to the following conditions:
(1) That the owner of real estate shall have received a Notice of Investigation from the Police Department as described in division (D).
(2) That the owner of real estate has instituted eviction proceedings with 30 days of receipt of a Notice of Investigation against a tenant whose suspected criminal activities would otherwise give rise to potential liability under this section.
(3) That the owner of real estate shall give no less that 30 days notice to the City Attorney, by certified mail, return-receipt requested, of the trial date for any eviction proceedings and a list containing the names and addresses of all witnesses the owner of real estate intends to call at the hearing.
(4) That the City Attorney, upon receipt of the notice and list of witnesses shall have the right to provide the owner of real estate with the names and addresses of additional witnesses including but not limited to witnesses from the Police Department whose presence shall be required at the hearing on the eviction proceedings.
(5) All witnesses listed by either the owner of real estate and/or the City Attorney's office shall be subpoenaed by the owner of real estate in proper and legal fashion, and be allowed to testify.
(6) The tenant involved as a defendant in the eviction proceedings shall prevail on the merits, not by reason of procedural irregularities but by sole reason that a court finds after trial that the illegal activity alleged in the notice the owner of real estate had received pursuant to division (B) of this section, did not, in fact, take place.
(7) The tenant institutes legal proceedings against the owner of real estate in the form of a counter claim or separate action and obtains a judgment for damages against the owner of real estate by reason of the tenant having prevailed on the merits in accordance with subdivision (6) above.
(8) The owner of real estate completes whatever steps he/she chooses to undertake to seekreview of the judgment by Motion to Correct Errors and/or appeal.
(9) The limited indemnification by the city shall be restricted solely to those damages assessed by judgment against the owner of real estate as set out aforesaid but shall not, in any event, include any attorney's fees incurred by the owner of real estate in connection with the enforcement of any of the terms of this section; but will include either the reasonable attorney's fees incurred in the defense of legal proceedings brought by a tenant pursuant to subdivision (7) above regardless of the outcome of the proceedings, or the provision of the legal services by the city, at the city's option.
(I) Appropriation and use of collected fines. Any fine collected as a result of a violation of this section shall be appropriated to the Police Department budget for the purpose of enforcing this section.
(Ord. G-48-92, passed 11-10-92, Am. Ord. G-22-99, 10-26-99; Am. Ord. G-3-11, passed 1-11-11; Am. Ord. G-17-12, passed 6-5-12)