A. Remedies Cumulative: The remedies provided in this section 4-1-5 are cumulative and supplementary to the criminal penalties provided in section 4-1-4 of this chapter, the criminal remedies provided by any other criminal ordinance or statute, other civil remedies, and any administrative proceedings to revoke, suspend, fine, or take other action against any license. The city may pursue the remedies provided in this section 4-1-5, the criminal penalties provided in section 4-1-4 of this chapter or other ordinances or statutes, other civil actions or remedies, administrative proceedings against a licensee, or any one or more of them, and may do so simultaneously or in succession.
B. Pursue Both Criminal And Civil Remedies: In the event that the city pursues both the criminal penalties in section 4-1-4 of this chapter, the criminal remedies provided in any other section, other civil remedies, or the remedies of any administrative action and the remedies in this section 4-1-5, the civil actions provided in this section 4-1-5 shall not be delayed or held in abeyance pending the outcome of any proceedings in the criminal, civil or administrative action, or any action filed by any other person, unless all parties to the action under this section 4-1-5 so stipulate.
D. Actions Brought By City/District Attorney Or Citizen: Actions under this section 4-1-5 shall be filed by the city attorney for the city of Gallup and/or by the district attorney for the 11th judicial district. A private citizen, in the name of the state, may also bring an action under this section 4-1-5.
E. Authority: Actions under this section 4-1-5 shall be in accordance with the New Mexico rules of civil procedure and the New Mexico rules of evidence.
F. Affect On Real Property: Actions under this section 4-1-5 may affect the use, possession, enjoyment, and title to real property. Accordingly, the city may file and record a notice of lis pendens against the real property involved.
G. Action Commenced By Filing: An action under this section 4-1-5 shall be commenced by the filing of a verified complaint or a complaint verified by and affidavit and a motion for temporary restraining order in accordance with the New Mexico rules of civil procedure.
H. Possible Defendants Identified: The defendants to an action under this section 4-1-5 and the persons liable for the remedies in this section may include the property itself, any persons owning or claiming any legal or equitable interest or right of possession in the property, all tenants and occupants at the property, managers and agents for any persons owning or claiming a legal or equitable interest in the property, any persons committing, conducting, promoting, facilitating or aiding the commission of or flight from a public nuisance, and any other persons whose involvement may be necessary to abate the nuisance, prevent it from recurring, or to carry into effect the court's orders for temporary restraining orders, seizures, closures, receiverships, permanent injunctions, liens, sales and destruction. Any person holding any legal or equitable interest or right of possession in the property who has not been named as a defendant may intervene as a defendant.
I. Notification Before Filing Civil Action:
1. At least ten (10) calendar days before filing a civil action under this chapter involving any seizure, closure, or receivership of real property, the council's designee shall post a notice at the main entrances to the buildings or at some other prominent place on the real property. The council's designee shall also mail a notice by certified mail, return receipt requested, to the owner(s) of the real property and to the holder(s) of the last deed of trust recorded on the real property. The mailing of the notice shall be deemed sufficient if mailed to the owner(s) and the holder(s) of the last recorded deed of trust at the addresses shown on the records of the McKinley County clerk and/or the McKinley County assessor's office. The posted and mailed notices shall state that the real property has been identified as a public nuisance and that a civil action under this chapter may be filed.
2. The council's designee is authorized to enter upon property for the purpose of posting notice and to affix the notice in any reasonable manner to any buildings and structures.
3. The council's designee shall not be required to post or mail any notice specified in subsection I1 of this section whenever he or she determines, in his or her sole discretion, that any of the following conditions exist:
a. The public nuisance poses a threat to public safety; or
b. Notice could jeopardize a pending investigation of criminal or public nuisance activity, confidential informants, or other police activity; or
c. Notice could result in sale, transfer, encumbrancing or destruction of the property; or
d. Other emergency circumstances exist; or
e. The owner(s) and the holder(s) of the last recorded deed of trust have been notified in writing within the last one hundred twenty (120) days that the property has been identified as a public nuisance and that a civil action under this chapter may be filed.
4. It shall be unlawful for any person other than the council's designee to remove any notice posted under the provisions of this subsection. (Ord. 2012-4, 6-12-2012)