CHAPTER 94:  NUISANCES
Section
   94.00   Findings
   94.01   Definitions
   94.02   Common law and statutory nuisances
   94.03   Certain conditions declared a nuisance
   94.04   City enforcement
   94.05   Nuisance created by others
   94.06   Suspension of license
   94.07   Unfit and unsafe premises
   94.08   Lien
   94.09   Severability
 
   94.99   Penalty
§ 94.00  FINDINGS.
   (A)   Whereas, the city is mindful that from time-to-time there exist certain nuisances in the city which are of such a nature and frequency that they cannot be controlled, deterred, or abated under existing ordinances;
   (B)   Whereas, nuisance properties present grave health, safety, and welfare concerns, and have a tremendous negative impact upon the quality of life, safety, and health of the neighborhoods where they are located;
   (C)   Whereas, the failure of owners or managers of certain real property to control the activity occurring on or from their property is a financial burden to the city caused by the substantial expenditures of public funds in order to enforce laws upon or near their property; and
   (D)   Whereas, the city believes that the public health, safety, and welfare of the citizens of the city will be better served by classifying certain activities or conditions as nuisances and recurring nuisances as chronic nuisances to be enforced under the provisions set forth below in this chapter.
(Ord. 2018-01, passed 8-21-17)
§ 94.01  DEFINITIONS.
   For the purpose of this chapter the following definitions shall apply unless the context clearly indicates or requires a different meaning.
   "ABATEMENT COSTS." The City of Hazard's necessary and reasonable costs for and associated with clearing, preventing unauthorized entry to, or demolishing all or a portion of a structure or premises, or taking any other action with regard to a structure or premises necessary to remedy a violation and to maintain and preserve public health, safety, and welfare in accordance with the city ordinance.
   “AUTOMOBILE PARTS.”  Any portion or parts of any motor driven vehicle as detached from the vehicle as a whole.
   "CITY."  City of Hazard, Kentucky.
   "CITY COMMISSION” or “COMMISSION."  The City Commission of the City of Hazard, Kentucky.
   "CHRONIC NUISANCE PROPERTY."  Property on which three or more nuisance activities exist or have occurred during any 60-day period or on which ten or more nuisance activities exist or have occurred during any 12-month period.
   "CODE ENFORCEMENT BOARD."  An administrative body created and acting under the authority of KRS 65.8801 to 65.8839.
   "CODE ENFORCEMENT OFFICER."  As defined in KRS 65.8840.
   "CONTROL."  The authority to regulate, restrain, dominate, counteract or govern property, or conduct what occurs on a property.
   "DOMESTIC VIOLENCE."  Physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple as defined in KRS 403.720.
   "GOOD CAUSE."  Circumstances beyond the ability of a person acting with reasonable care and diligence to control.
   "IMMINENT DANGER." A condition which is likely to cause serious or life-threatening injury or death at any time.
   “INOPERATIVE CONDITION.”  Unable to move under its own power due to defective or missing parts, and which has remained in such condition for a period of not less than ten consecutive days.
   “MOTOR VEHICLE.”  Any style or type of motor driven vehicle used for the conveyance of persons or property.
   “MULTIPLE UNIT DWELLINGS."  If the chronic nuisance property consists of multiple unit dwellings or mixed uses and the nuisance activities have occurred solely within a unit or units, the authority to issue an order to close and vacate is restricted to the unit or units in which the nuisance activities have occurred and does not extend to any other unit at the chronic nuisance property. This definition does not apply to hotels, motels, or other places of lodging.
   “NUISANCE.”  Any and all nuisances stated under the definition of nuisance activity, defined by any other applicable, law, regulation or code.
   "NUISANCE ACTIVITIES."
      (1)   Any public nuisance per KRS 411.500-411.570, any criminal activity or violation of the Hazard Code of Ordinances, including but not limited to, the following activities, behaviors or conduct permitted to occur on property:
         (a)   Harassment, as defined in KRS 525.070 through 525.080.
         (b)   Public intoxication or alcohol intoxication, as defined in KRS 525.100 or KRS 222.202.
         (c)   Rioting, inciting to riot, unlawfully assembling, or disorderly conduct as defined in KRS 525.010 through or KRS 525.060.
         (d)   Murder, manslaughter, or reckless homicide as defined in KRS 507.020, 507.030, 507.040, or 507.050.
         (e)   Rape, sodomy, sexual abuse, sexual misconduct, indecent exposure, or unlawful use of an electronic device to induce a minor to engage in sexual activities, as defined in KRS 510.010 through 510.155.
         (f)   Assault, menacing, wanton endangerment, terroristic threatening, criminal abuse, stalking, or disarming a police officer, as defined in KRS 508.010 through 508.160.
         (g)   Unsworn falsification to authorities or giving peace officer a false name or address, as defined in KRS 523.100 or 523.110.
         (h)   Obstruction of public administration, as defined in KRS 519.010 through KRS 519.070.
         (i)   Resisting arrest, fleeing or evading police, or hindering prosecution or apprehension, as defined in KRS 520.090 through KRS 520.130.
         (j)   Promoting gambling, conspiracy to promote gambling, possession of gambling records, or any other illegal gambling activities, as defined in KRS Chapter 528.
         (k)   Prostitution, promoting prostitution, permitting prostitution, or human trafficking, as defined in KRS 529.010 through 529.110.
         (l)   Endangering the welfare of a minor or unlawful transaction with a minor as defined in KRS 530.060 through 530.080.
         (m)   Distribution of obscene matter promoting sale of obscenity, or voyeurism, as defined in KRS 531.010 through 531.110.
         (n)   Sexual exploitation of minors, as defined in KRS 531.300 through 531.370.
         (o)   Drug possession or trafficking, as defined in KRS 218A.010 through 218A.1444.
         (p)   Weapons related offenses, as defined in KRS 527.010 through 527.210.
         (q)   Alcohol related offenses, as defined in KRS Chapters 241, 242, 243 and 244.
         (r)   Animal control violations, as defined in Hazard Code of Ordinances and KRS.
         (s)   Fireworks violations, as defined in Hazard Code of Ordinances and KRS.
         (t)   Curfew violations, as defined in Hazard Code of Ordinances and KRS.
         (u)   Noise violations, as defined in Hazard Code of Ordinances and KRS.
         (v)   Sale of alcoholic beverages violations, as defined in Hazard Code of Ordinances and KRS.
         (w)   Discharging air rifle or discharging firearms violations, as defined in Hazard Code of Ordinances and KRS.
         (x)   Nude performance violations, as defined in Hazard Code of Ordinances and KRS.
         (y)   Any attempt to commit and/or conspiracy to commit any of the activities, behaviors or conduct listed in this section.
      (2)   To qualify, all nuisance activities must be based on either:
         (a)   Personal observation of a police officer, or code enforcement officer; or
         (b)   A determination by a police officer, or code enforcement officer, either after an investigation or following a sworn statement of a person who personally witnessed the alleged incident that the alleged nuisance activities did, in fact, occur.
      (3)   For purposes of this chapter, “Nuisance Activity” shall not include conduct where the person in charge or owner is the victim of a crime and had no control over the criminal act.
      (4)   For purposes of this chapter, domestic violence calls for service are not considered “Nuisance Activities”.
   "ORDINARY PUBLIC VIEW." A sight line within normal visual range by a person on a public street or sidewalk adjacent to real property.
   "OWNER." A person, association, corporation, partnership, or other legal entity having a legal or equitable title in real property.
   "PARTS CAR." An automobile that is not intended to be operated along streets and roads, but is used to provide parts for the restoration of other automobiles.
   "PREMISES." A lot, plot, or parcel of land, including any structures upon it.
   "PERMIT." To suffer, allow, consent to, acquiesce by failure to prevent, or expressly assent or agree to the doing of an act.
   "PERSON." Any natural person, agent, association, firm, partnership, corporation, limited liability company or other entity capable of owning, occupying or using property in the city.
   "PERSON ASSOCIATED WITH THE PROPERTY." Any person who, on the occasion of a nuisance activity, has entered, patronized, visited, or attempted to enter, patronize, or visit, or waited to enter, patronize, or visit a property, or any person present on a property. “Person Associated with the Property” includes, without limitation, any officer, director, customer, agent, employee, or any independent contractor of a property, the person in charge, or an owner of a property.
   "PERSON IN CHARGE." Any person with actual or constructive possession of a property, including but not limited to an owner or occupant of property under his or her ownership or control. When an owner of the property and the occupant of a property under his or her ownership or control are not the same person, the “Person in Charge” shall include both such persons.
   "PROPERTY." Any property, including land and that which is affixed, incidental or appurtenant to land, including but not limited to any business or residence, parking area, loading area, landscaping, building, or structure or any separate part, unit, or portion thereof, or any business equipment, whether or not permanent. For property consisting of more than one unit, property may be limited to the unit or the portion of the property on which any nuisance activity has occurred or is occurring, but includes areas of the property used in common by all units of property including without limitation other structures erected on the property and areas used for parking, loading and landscaping.
   "RESIDENTIAL LANDLORD." A real property owner of property upon which is located one or more dwelling units leased or otherwise rented to tenants solely for residential purposes, or a mobile home park or other permanent or semi permanent site at which lots are leased or otherwise rented to tenants for the parking of a manufactured home, mobile home, or recreational vehicle that is used solely for residential purposes. “Residential Landlord” does not include the owner of a hotel, motel, or a college or university dormitory.
   “SCRAP METAL.”  Pieces or parts of steel, iron, tin, zinc, copper, aluminum, or any alloy thereof, whether covered with porcelain or any other material, whether intact or in parts, which has served its usefulness in its original form and can no longer be used for its originally intended purpose.
   “UNFIT FOR FURTHER USE.”  In a dangerous condition; having defective or missing parts; or in such a condition generally as to be unfit for further use as a conveyance.
(Ord. 2018-01, passed 8-21-17)
§ 94.02  COMMON LAW AND STATUTORY NUISANCES.
   In addition to what is declared in this chapter to be a nuisance, those offenses which are known to the common law and statutes of Kentucky as nuisances may be treated as such and be proceeded against as is provided in this chapter or in accordance with any other provision of law.
(Ord. 2018-01, passed 8-21-17)  Penalty, see § 94.99
§ 94.03  CERTAIN CONDITIONS DECLARED A NUISANCE.
   It shall be unlawful for the owner, occupant, or person having control  or management of  any land within  the city to permit a public nuisance to develop thereon.  The following conditions are declared to be public nuisances:
   (A)   Dangerous trees or stacks adjoining street.  Any tree, stack, or other object standing in such a condition that it will, if the condition is allowed to continue, endanger the life, limb, or property of, or cause hurt, damage, or injury to persons or property upon the public streets or public ways adjacent thereto, by the falling thereof or of parts thereof.
   (B)   Accumulation of rubbish.  An accumulation on any premises of filth, refuse, trash, garbage, or other waste material which endangers the public health, welfare, or safety, or materially interferes with the peaceful enjoyment by owners or occupants of adjacent property because of the danger that it will catch or communicate fire, attract and propagate vermin, rodents, or insects, or blow rubbish into any street, sidewalk, or property of another.  It shall be unlawful for any person, firm, or corporation to throw into or dump upon the banks of the North Fork River, within the corporate limits of the city, or to dump or store upon any vacant lot or in any vacant building, or allow to accumulate elsewhere within the corporate limits of the city, any paper, paper boxes or other containers, cans, bottles, or other refuse or junk of any kind.
(Ord. 1010.3, passed 2-16-42)
   (C)   Storage of explosives.  The storage of explosive material which creates a safety hazard to other property or persons in the vicinity.
   (D)   Weeds and grass.  The excessive growth of weeds, grass, or other vegetation.  Unless otherwise provided, "EXCESSIVE" shall mean growth to a height of 12 inches or more.
   (E)   Open wells.  The maintenance of any open, uncovered, or insecurely covered cistern, cellar, well, pit, excavation, or vault situated upon private premises in any open or unfenced lot or place.
   (F)   Stagnant water.  Permitting ponds, pools, or other bodies of stagnant water to remain on any property, or failing to properly drain any body of stagnant water when notified to do so by the County Health Officer or the Chief of Police. 
(Ord. 1020.1, passed 6-26-16)
   (G)   Trees and shrubbery obstructing streets, sidewalks, and drainage.  The growing and maintenance of trees or shrubbery which in any way interferes with the use, construction, or maintenance of streets or sidewalks, causes injury to streets or sidewalks, or constitutes an obstruction to drainage.
   (H)   Keeping of animals.  The failure to keep an animal's pen, yard, lot, or other enclosure in a sanitary condition and free from preventable offensive odors.
   (I)   Junk; scrap metal; motor vehicles.  The storage of motor vehicles in an inoperative condition, motor vehicles unfit for further use, automobile parts, or scrap metal within the city limits except on premises authorized by the city for such purposes.
   (J)   One or more mobile or manufactured homes as defined by KRS 227.550 that are junked, wrecked or inoperative and which are not inhabited.
(Ord. 2018-01, passed 8-21-17)  Penalty, see § 94.99
§ 94.04  CITY ENFORCEMENT.
   The provisions of this chapter may be enforced through a Code Enforcement Board or by any other means by law, including ordinance.  If the provisions of this chapter are enforced by a Code Enforcement Board then Kentucky Statutes and any other law or regulation governing the Code Enforcement Board will supersede any conflicting provision within any Hazard Code of Ordinances.
   (A)   When the City Manager or Code Enforcement Officer receives information documenting the existence of activities that qualify as nuisance activities:
      (1)   The Code Enforcement Officer shall independently review such report(s) to determine whether a nuisance, as defined herein, is established by the information.
      (2)   Upon a determination that a nuisance exists, the Code Enforcement Officer shall issue a notice of violation to the person in charge and the owner that the property has been determined to have a nuisance and request an abatement plan from the owner.
      (3)   The notice to the person in charge and the owner, shall contain the following information:
         (a)   The street address or a legal description sufficient for identification of the property.
         (b)   A statement that the Code Enforcement Officer has determined the property to be have a nuisance with a concise description of the nuisance activities leading to this determination.
         (c)   A demand that the owner or the person in charge on behalf of the owner respond within ten days to the Code Enforcement Officer by either describing the actions the owner intends to take to abate the nuisance (abatement plan) or indicating good cause as to why the owner cannot abate the nuisance.
         (d)   That an agreed abatement plan must be reached with the Code Enforcement officer within 30 days from the date of the notice of determination of nuisance upon the property.
         (e)   That if the nuisance(s) is not abated and good cause for failure to abate is not shown, enforcement action may be initiated including civil penalties and/or fines assessed, per nuisance, if not less than $500 nor more than $5,000, revocation or suspension of any city occupational license, revocation or suspension of city services including utilities, a civil action foreclosure of the property, and/or any other legal remedy available under the laws of the city or Commonwealth of Kentucky, including filing a lien on the property per § 94.09 herein.
         (f)   That permitting the existence of a nuisance or chronic nuisance property is a violation of this chapter.
         (g)   That the above remedies are in addition to those otherwise provided by law.
      (4)   The notice may be delivered in person or sent registered mail with return receipt requested. The notice may be delivered to the property itself and posted or to the mailing address of the owner of the property as listed on the city tax roll, or to any other address that is likely to give the person in charge and the owner notice of the determination of the Code Enforcement Officer.
   (B)   Enforcement action under this chapter shall consist of:
      (1)   Issuance of a citation by the City Commission, or if applicable, the city Code Enforcement Board, where the citation will state the violations of this chapter and a civil penalty for each violation of not less than $500, nor more than $5,000;
      (2)   If applicable, revocation or suspension of the occupational license and/or city service/utilities;
      (3)   A civil action foreclosure of the property; and/or
      (4)   Any other legal remedy available under the laws of the city or Commonwealth of Kentucky.
   (C)   The City Manager, or his/her designee, may initiate enforcement action where:
      (1)   The owner, and/or person in charge on behalf of the owner, fails to respond within ten days from the date of the notice of determination of nuisance;
      (2)   No agreeable written abatement plan is reached within 30 days from the notice of determination of nuisance and the owner fails to establish one of the affirmative defenses provided herein; or
      (3)   The owner fails to abate the nuisance activities from the property as required by the agreed abatement plan; or
      (4)   The owner fails to comply continuously with all conditions of the written abatement plan for a period of one year.
   (D)   The Commission will direct the enforcement action of the City Manager by the results of a Commission hearing.  The Commissioners will conduct a hearing regarding the enforcement at the next regular Commission meeting or at a special meeting.  The enforcement action will be decided by majority vote.  The owner and person in charge of the property will be notified of the Commission hearing at least seven days in advance of the hearing by certified mail, return receipt requested, or hand delivery unless imminent danger is present then a special meeting may be called within 24 hours.  The owner and person in charge will be notified of the results of the Commission hearing within 14 days of the hearing date, certified mail, return receipt requested.  The owner may waive the hearing.
   (E)   If the person in charge is a person with actual or constructive possession of the property, then the legal owner of the property and the person in charge must both agree to any proposed abatement plan within the time allotted under division (A)(3)(d) of this section.  Failure of both to agree to a proposed abatement plan shall result in a finding by the City Manager, or his/her designee, that the abatement plan is not agreeable under division (C)(2) of this section.
   (F)   Failure to respond, failure to abate the nuisance activities, or failure to propose an abatement plan shall be prima facie evidence of lack of cooperativeness of the owner and person in charge. Failure to execute or comply with any abatement plan shall be prima facie evidence of lack of good faith in mitigating or correcting the situation.
   (G)   Residential landlord affirmative defense. A residential landlord has an absolute defense to a nuisance charge under this chapter if they establish by a preponderance of the evidence that the basis for the nuisance charge is the actions or omissions of their tenant(s) and the residential landlord establishes all of the following:
      (1)   That the residential landlord undertakes a reasonably appropriate screening process for prospective tenants including diligence into the criminal background of prospective tenants, which shall include, at a minimum, an online search and inquiry with the tenant into their criminal background;
      (2)   That the residential landlord include language in their leases with tenants that provides that violations of federal, state, or local laws by tenants or their guests is grounds for eviction with 30 days or less notice;
      (3)   That the residential landlord, upon written notice that a nuisance activity has occurred on their property within the prior 30 days, commences an eviction action against the tenant whose action or omission forms the basis of the charge, and diligently prosecutes that action to completion, irrespective of any ultimate ruling by a court on the merits of that action. A residential landlord shall not be responsible for prosecuting a forcible entry and detainer action against the tenant or their guests whose action or omission forms the basis of the charge if the city fails to give the notice provided in this section.
   (H)   Good cause affirmative defense.  Any person charged under this chapter has an absolute defense to a charge under this chapter if they establish by a preponderance of the evidence that:
      (1)   The person charged has taken all appropriate actions to deter and prevent the nuisance activity that forms the basis of the charge on their property; and 
      (2)   The nuisance activity that forms the basis of the charge was not the result of the actions or omissions of person charged, their authorized guests, or any other authorized person residing in their household; and
      (3)   The nuisance activity that forms the basis of the charge was not permitted by the person charged and the person charged has taken appropriate to abate the nuisance.
   (I)   Resident enforcement.  City residents, affected by an alleged nuisance and/or chronic nuisance property, may elect to provide a sworn complaint to the Code Enforcement Officer at the Hazard Police Department or to the City Manager at city hall, which may be used by the city in their enforcement of this chapter.
(Ord. 2018-01, passed 8-21-17)
§ 94.05  NUISANCE CREATED BY OTHERS.
   For the purposes of this chapter, it shall not be essential that the nuisance be created or contributed to by the owner, occupant, or person having control or management of the premises, but merely that the nuisance be created or contributed to by licensees, invitees, guests, or other persons for whose conduct the owner or operator is responsible, or by persons for whose conduct the owner or operator is not responsible, but by the exercise of reasonable care ought to have become aware of.
§ 94.06  SUSPENSION OF LICENSE.
   (A)   Whenever it is brought to the attention of the Board of Commissioners that a nuisance exists and the Board of Commissioners deems that there is an immediate threat to the public health, safety, welfare, the Board of Commissioners may by majority vote suspend the license of any person conducting business upon the premises where the nuisance exists.
   (B)   The City Clerk shall cause notice of the suspension to be served personally upon the licensee or at the premises where the nuisance exists.
   (C)   Upon application of the licensee, the Board of Commissioners may remove the suspension upon such terms as it may direct.
§ 94.07  UNFIT AND UNSAFE PREMISES.
   An owner shall not permit any structure upon his or her premises to become unfit and unsafe for human habitation, occupancy, or use or to permit conditions to exist on the structure or premises which are dangerous or injurious to the health or safety of the occupants of the structure, the occupants of neighboring structures, or other residents of the city.
(Ord. 2018-01, passed 8-21-17)
§ 94.08  LIEN.
   (A)   The city shall have a lien against the property for all civil fines assessed for the violation and for all charges and fees incurred by the city in connection with the enforcement of this chapter, including abatement costs. The affidavit of the Code Enforcement Officer shall constitute prima facie evidence of the amount of the lien and the regularity of the proceedings pursuant to this section, and shall be recorded in the office of the Perry County Clerk. The lien shall be notice to all persons from the time of its recording and shall bear interest at a rate of 8% annually thereafter until paid. The city shall possess the lien for ten years following the date of the final, nonappealable order of a Code Enforcement Board or final judgment of the court. The lien may be enforced by judicial proceeding.
   (B)   The lien created shall take precedence over all other liens, except state, county, school board, and city taxes, and  the lien shall not take precedence or priority over a previously recorded lien if:
      (1)   The city failed to provide the lien holder a copy of the determination by City Commission or Code Enforcement Board; or
      (2)   The lien holder received a copy of the determination and the lien holder corrected the violations or paid all civil fines assessed for the violation and all charges and fees incurred by the city in connection with the enforcement of the chapter, including abatement costs.
   (C)   The owner of a premises upon which a lien has been attached shall be personally liable for the amount of the lien, including all civil fines assessed for the violation and all charges, fees, and abatement costs incurred by the city in connection with the enforcement of the chapter. The city may bring a civil action against the owner and shall have the same remedies as provided for the recovery of a debt owed. The failure of the city to comply with notifying the owner of the enforcement action and the failure of a lien to take precedence over previously filed liens shall not limit or restrict any remedies that the city has against the owner of the premises.
   (D)   This section shall not apply to an owner, occupant, or person having control or management of any property if the owner, occupant, or person is not the generator of the rubbish or is not dumping or knowingly allowing the dumping of the rubbish and has made reasonable efforts to prevent the dumping of rubbish by other persons onto the premises.
(Ord. 2018-01, passed 8-21-17)
§ 94.09  SEVERABILITY.
   The provisions of this chapter are intended to be consistent with any applicable provisions of state law. If any provisions of this chapter, or its application to any person, or circumstances is held to be invalid for any reason, the remainder of the chapter, or the application of its provisions to other persons or circumstances shall not in any way be affected. Any court passing judgment upon this chapter shall hold it effective to the maximum extent possible.
(Ord. 2018-01, passed 8-21-17)
§ 94.99  PENALTY.
   Whoever violates any provision of this chapter shall be guilty of a violation and shall be fined not more than $500 for each offense.  Each day’s continued violation shall constitute a separate offense. Violation of this chapter shall constitute a civil offense which shall be enforced according to the procedures set forth in the Hazard Code Enforcement Board Ordinance by the Code Enforcement Board, hearing officers, code enforcement officers, citation officers and other persons duly authorized to investigate and enforce the violations through investigation, inspection and issuance of citations. 
(Ord. 2018-01, passed 8-21-17; Am. Ord. 2018-07, passed 12-4-17)