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4-1-5-2: PROCEDURE:
   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.
   C.   Actions Are Civil And Remedial: All actions under this section 4-1-5 are civil and remedial in nature. All seizure, closure, receivership, sale and destruction remedies under this section 4-1-5 shall be in rem. Injunctive remedies under this section may be partly in personam.
   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)
4-1-5-3: REMEDIES FOR PUBLIC NUISANCES:
Where the existence of a public nuisance is established in a civil action under this section 4-1-5, the city shall petition the court to enter permanent prohibitory and mandatory injunctions requiring the defendants to abate the public nuisance and take specific steps to prevent the same and other public nuisances from occurring on the real property, in the vehicle, or use of the real property, vehicle or other personal property. The city shall also petition the court to order, as to any real property, vehicle or other personal property used to commit, conduct, promote, facilitate or aid the commission of the flight from any public nuisance, the following remedies:
   A.   Closure Of Real Property And Destruction Of Certain Structures: That the real property be closed for a period of not less than one year and not more than three (3) years from the date of the final judgment, plus any extension of that period caused by failure to comply with the conditions for release of the property set out below, and if the city requests, that certain structures upon the real property be destroyed. The city may request the court to order the defendants to carry out the destruction of the structures. The city shall petition the court to order the defendant to provide for the maintenance, utilities, insurance, and security of the property during the period of closure, and that at the end of the closure period, the real property be released to the owner only upon:
      1.   Payment of all expenses incurred by the city for seizure, closure, utilities, security, access, destruction of buildings, maintenance, insurance, and other reasonable expenses; and
      2.   Payment of all civil judgments under this section 4-1-5; and
      3.   Execution by all owners and other persons holding any legal or equitable interest or right of possession in the real property of a complete and unconditional release of the city and all of its employees and agents for liability for the seizure, closure and damages to the property.
   In the event that the owners and other persons holding any legal and equitable interest and right of possession, or any of them, fail, neglect or refuse to pay the fees, expenses, and judgments, or to execute the release provided above, the property shall remain closed. However, if a year expires without the owner making payment, the property shall then forfeit to the city. The issuance and execution of the closure order shall not be deemed a bailment of property. The owner of the property remains responsible for the maintenance and security of the property subject to the closure order and shall be permitted reasonable access to the property for these purposes upon application to the court.
   B.   Receivership Of Real Property And Destruction Of Certain Structures: That, when the city so requests, in lieu of closure of real property, the real property be placed into a special receivership for a period not less than one year and not more than three (3) years from the date of final judgment, plus any extension of that period caused by a failure to comply with the conditions for release of the property set out below, and, if the city requests, that certain structures be destroyed. The city may request the court to order the defendants to carry out the destruction. The city shall petition the court to order the defendant to provide for and pay the maintenance, utilities, security, operating expenses, taxes, insurance, receivership fees, and other reasonable expenses related to the property to the extent that the rents, profits, and income of the property under receivership is insufficient to defray these expenses, and that at the end of the receivership period, the real property shall be released to the owner only upon:
      1.   Payment of all expenses incurred by the city for seizure, closure, utilities, security, access, maintenance, insurance, taxes, receivership and receivership fees, the costs of destroying structures, and other reasonable expenses not covered by the rents, profits, and income under receivership; and
      2.   Payment of all civil judgments under this section 4-1-5; and
      3.   Execution by all owners and other persons holding any legal or equitable interest or right of possession in the real property of a complete and unconditional release of the city and all of its employees and agents, including the receiver, for any liability for the seizure, closure and receivership and damages to the property. (Ord. 2012-4, 6-12-2012)
4-1-5-4: JUDGMENT FOR COSTS AND ATTORNEY FEES:
In any case in which a public nuisance is established, in addition to the remedies provided above, the city may petition the court for a separate civil judgment for the city's costs and attorney fees against every person who committed, conducted, promoted, facilitated, or aided in the commission of any public nuisance or who held any legal or equitable interest or right of possession in any real property or vehicle on or in which any public nuisance occurred, or any real property, vehicle or other personal property used to commit, conduct, promote, facilitate or aid the commission of any public nuisance. This civil judgment shall be for the purpose of compensating the city for its costs from pursuing the remedies under this section 4-1-5. (Ord. 2012-4, 6-12-2012)
4-1-5-5: SUPPLEMENTARY REMEDIES:
In any action in which probable cause for the existence of a public nuisance is established, in the event that the defendants, or any one of them, fail, neglect or refuse to comply with the court's temporary restraining orders, receiverships, closures, destruction orders, and other orders, the city may petition the court to, in addition to or in the alternative to the remedy of contempt, permit the city to enter upon the real property, vehicle or other personal property, and abate the nuisance, take steps to prevent public nuisances from occurring, and/or perform other acts required of the defendants in the court's temporary restraining orders and other orders. (Ord. 2012-4, 6-12-2012)
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