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A. Request; Application: Any person having received a notice of violation or a civil citation may request a hearing before a hearing officer by filing a written application for a hearing in the city recorder's office within ten (10) days of the date of notice. Hearings shall be conducted as provided in title 4, chapter 4, article A of this code. All applications for hearing shall be accompanied by a copy of the notice of violation and the fee established in section 4-6-1 of this code.
B. Notification Of Enforcement Officer: Upon receipt of an application for hearing, the city recorder shall immediately notify the enforcement officer.
C. Burden Of Proof: The burden to prove any defense shall be upon the person raising such defense.
D. Applicable Defenses: The hearing officer may dismiss the notice and release the person from liability, if any of the following defenses are applicable:
1. Notice was not served in compliance with the provisions of this article;
2. The violation was corrected within the warning period;
3. It is determined that no violation of the ordinance existed under the notice or civil citation; or
4. At the time of the notice or civil citation, compliance would have violated the criminal laws of the state.
E. Mitigating Circumstances: If the hearing officer finds that a violation did occur but that mitigating circumstances exist, the penalty may be reduced after the violation is corrected. Mitigating circumstances may include:
1. If a change in the actual ownership of the subject property was recorded with the county recorder's office after the notice of violation was issued and the new owner is not related by blood, marriage or common ownership to the prior owner;
2. If the violation or inability to cure were caused by a force majeure event such as war, act of nature, strike or civil disturbance;
3. Compliance with the notice would have presented an imminent and irreparable injury to persons or property; or
4. Such other mitigating circumstances as may be approved by the city attorney or the responsible official.
F. Correction After Expiration Of Warning Period Not Defense: It shall not be a defense that the responsible party corrected the violation after expiration of the warning period.
G. Agreement For Delayed Or Periodic Payments: If the hearing officer finds that the violation occurred and no applicable defense applies, the hearing officer may, in the interest of justice and on behalf of the city, enter into an agreement for the delayed or periodic payment of the applicable penalties. In the absence of an agreement for delayed or periodic payments, any civil penalty upheld or reduced by the hearing officer shall be paid within twenty (20) days of the date of the hearing officer's written decision.
H. Appeal To Board Of Building And Fire Code Appeals Or Board Of Zoning Adjustment: Any administrative determination by the hearing officer regarding an interpretation of the provisions of this code within the jurisdiction of either the board of building and fire code appeals or the board of zoning adjustment may be appealed to the applicable board.
I. Appeal To District Court: Any person adversely affected by the decision of the hearing officer may petition the district court for review of the administrative determination pursuant to section 10-3-703.7(5), Utah Code Annotated, or its successor provision.
(Ord. 2005-29, 5-24-2005)
ARTICLE C. PUBLIC NUISANCE ABATEMENT LAW
SECTION:
1-4C-1: Legislative Declarations
1-4C-2: Short Title
1-4C-3: Definitions
1-4C-4: Public Nuisance; Right Of Action To Abate
1-4C-5: Civil Abatement
1-4C-6: Permanent Injunction
1-4C-7: Preliminary Injunctions; Temporary Restraining Orders
1-4C-8: Temporary Restraining Order; Defendant's Remedies
1-4C-9: Temporary Receiver
1-4C-10: Civil Penalties
1-4C-11: Assistance Of Ogden Police Department
1-4C-12: Prohibited Acts
1-4C-13: Article Not Exclusive Remedy
The council of Ogden City finds that public nuisances exist in the city in the operation of certain commercial establishments and the use, alteration, maintenance or operation of residential, commercial and industrial properties, in flagrant violation of the ordinances of the city or the laws of the state of Utah. All of these interfere with the interest of the public in property values, public health, safety, and welfare, and the quality of life and community environment. The council further finds that the continued occurrence of such activities and violations is detrimental to the health, safety and welfare of the people of the city and of the businesses thereof. It is the purpose of the council to create one standardized procedure for securing legal and equitable remedies in the civil courts relating to the subject matter encompassed by this law, without prejudice to the use of other remedies or procedures available under existing and subsequently enacted statutes or ordinances, and to strengthen existing laws on the subject.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005)
The following terms, as used in this article, shall mean as follows:
ABATE, ABATEMENT: To repair, replace, rehabilitate, remove, destroy, demolish, correct or otherwise remedy a condition that constitutes a public nuisance.
ADVERSE IMPACT: Includes, but is not limited to, the following: any search warrants served on the premises or property where controlled substances and/or weapons were seized; investigative purchases of controlled substances on or near the property by law enforcement agencies or their agents; arrests for violations of controlled substance law and/or possession of weapons; loitering for the purposes of engaging in illegal activity; an increase in the volume of traffic associated with property; complaints made to law enforcement officials of illegal activity associated with the property; finding of illegal weapons, as provided in part 5, chapter 10, title 76, Utah code, or controlled substances, as defined in the Utah controlled substances act of the Utah code, on or near property by law enforcement officials and their agents.
CLOSING, CLOSING ORDER: A court order prohibiting use or occupancy of premises or property, except as reasonably necessary for the performance of maintenance or abatement work in accordance with city ordinances.
CONVICTION: The entry of a plea of guilty or no contest to, or a verdict of guilty, upon an indictment or information in a criminal action.
HABITUAL NUISANCE: Any premises or property located within the city:
A. Where there have occurred two (2) or more convictions of a public nuisance related offense on the part of the lessees, owners, operators or occupants within the period of one year prior to the commencement of an action under this article;
B. Where there have occurred three (3) or more violations of a public nuisance related offense on the part of the lessees, owners, operators or occupants within the period of one year prior to the commencement of an action under this article; or
C. For which there has been presented a preponderance of evidence of repeated criminal activity that has an adverse impact on such premises or property, or the surrounding neighborhood, within the period of one year prior to the commencement of an action under this article.
NOTICE TO ABATE: A written notice to abate or otherwise correct a public nuisance as defined herein, which notice is provided either by personal service, or by first class mail or certified mail, postage prepaid, to the address of the premises or property, or to such other address as provided in the records of the Weber County assessor.
PREMISES: A building or structure, or the premises on which a building or structure is located, or undeveloped land.
PROPERTY: A lot, parcel or plot of ground, whether occupied or not.
UTAH CODE: Utah Code Annotated, 1953, as amended.
VIOLATION: Conduct or evidence of conduct prohibited under this article. A violation does not require criminal prosecution and conviction but only a preponderance of evidence that the prohibited conduct is occurring or has occurred. Evidence of prohibited conduct may include, but is not limited to, police reports, investigative reports, execution of search warrants, results of police surveillance, arrest and/or conviction of local and state and federal laws, activities associated with trafficking of controlled substances, finding of weapons and/or controlled substances on or near the property, increased volume of traffic associated with the premises or property.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005)
A. Every premises or property within the city is a public nuisance and subject to abatement under the provisions of this article where:
1. There occurs, or has occurred, the unlawful sale, manufacture, service, storage, distribution, dispensing, or acquisition of any controlled substance, precursor, or analog specified in the Utah controlled substances act, title 58, chapter 37, Utah code;
2. Gambling is, or has been, permitted to be played, conducted, or dealt upon as prohibited in title 76, chapter 10, part 11 of the Utah code;
3. Criminal activity is, or has been, committed in concert with two (2) or more persons as provided in section 76-3-203.1, Utah code;
4. Parties occur frequently that create the conditions of a nuisance as defined in subsection 78-38-1(1);
5. Prostitution or promotion of prostitution is, or has been allowed to be, regularly carried on by one or more persons as provided in title 76, chapter 10, part 13, Utah code;
6. Used for the purpose of, or to aid in, the commission of a violation of title 76, chapter 10, part 5 (weapons) of the Utah code;
7. There is, or has occurred, a criminal nuisance as defined in sections 76-10-801, 802, 803, 804, or 805 of the Utah code;
8. Used for the purposes of pornographic performances and/or promotion of pornographic material as defined and prohibited in title 76, chapter 10, part 12 of the Utah code;
9. Used for purpose of a business, activity or enterprise that is not licensed as required by federal, state or the provisions of title 5 of this code, exclusive of any license required only for revenue purposes;
10. There exists, or has been allowed to exist, alcoholic beverages or products possessed, kept, used, offered for sale, sold, given, furnished, supplied, received, purchased, stored, warehoused, manufactured, adulterated, shipped, carried, transported, or distributed in violation of title 5, chapter 3 of this code or in violation of alcohol beverage control act, title 32A of the Utah code, which alcoholic products, packages, equipment, or other property kept or used in maintaining the public nuisance on such premises or property shall also be considered to be a public nuisance;
11. There is, or has occurred, a violation of the provisions of sections 76-6-408 (receiving stolen property), 41-1a-1313 (possession without identification number), 41-1a-1316 (receiving or transferring stolen vehicle), 41-1a-1317 (selling or buying without identification numbers), 41-1a-1318 (fraudulent alteration of identification number) of the Utah code;
12. Used for the purpose of animal fighting as prohibited under title 76, chapter 9, part 3 of the Utah code, or section 13-3-1 of this code; or
13. There is occurring:
a. A violation of the property maintenance regulations described in title 12, chapter 4 of this code,
b. A nuisance as described in section 12-8-1 of this code,
c. A violation of the zoning ordinances of Ogden City, Utah, title 15 of this code,
d. A violation of the international property maintenance code as adopted pursuant to title 16 of this code,
e. A violation of this code for the abatement of dangerous buildings, title 16, chapter 8 of this code, or failure to comply with an order issued pursuant to that chapter,
f. A violation of the storm water pollution prevention ordinance of Ogden City, title 9, chapter 7 of this code, or
g. A violation of title 12, chapter 18 of this code.
B. Premises or property determined to be a "habitual nuisance" as defined herein shall be deemed to be a public nuisance subject to abatement under the provisions of this article, and a cause of irreparable harm to the city and the interests of the public sought to be protected under this article.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005; Ord. 2006-45, 7-25-2006; Ord. 2007-14, 5-1-2007)
A. Whenever there is reason to believe that a public nuisance, as defined in section 1-4C-4 of this article, is kept, maintained, or exists in the city, the city attorney may maintain a civil proceeding:
1. To abate or enjoin the public nuisance, through the issuance of one or more of the following:
a. Temporary restraining order, including, but not limited to, the issuance of a closing order or vacation order pursuant to section 1-4C-7 of this article,
b. Preliminary injunction, including, but not limited to, the issuance of a closing order or vacation order pursuant to section 1-4C-7 of this article,
c. Permanent injunction, including, but not limited to, the issuance of a closing order pursuant to subsection 1-4C-6D of this article or a vacation order pursuant to subsection 1-4C-6C of this article;
2. For damages for causing or maintaining the public nuisance, including, but not limited to:
a. The cost, if any, of abating the public nuisance, or
b. The actual costs, expenses and disbursements of the city in investigating, bringing and maintaining the action, including reasonable attorney fees;
3. To abate any public nuisance defined under subsections 1-4C-4A1 through A6 of this article and obtain an order for the automatic eviction of the tenant of the premises or property harboring the public nuisance, pursuant to sections 78-38-10 through 78-38-16 of the Utah code;
4. For the imposition of civil penalties as provided in section 1-4C-10 of this article; and/or
5. Any other equitable relief determined by the court to be appropriate or necessary for the abatement of such public nuisance.
B. The action shall be brought in the second district judicial court of the state of Utah, or any other court of competent jurisdiction, and shall be in the form prescribed by the rules of civil procedure of the state of Utah for injunctions, but the city attorney shall not be required to execute a bond with respect to the action. The civil action may be brought pursuant to this article or pursuant to state law.
C. In any action to abate or enjoin any public nuisance, the court need not find that the property involved was being unlawfully used at the time of the hearing.
D. If the action is instituted to abate the distribution or exhibition of material alleged to offend public decency, no restraining order or injunction shall issue except upon notice to the person sought to be enjoined, and that person shall be entitled to a trial of the issues commencing within three (3) days after filing of an answer to the complaint and a decision shall be rendered by the court within two (2) days after the conclusion of the trial. As used in this subsection, "distribute", "exhibit", and "material" mean the same as provided in section 76-10-1201, Utah code.
(Ord. 2005-12, 3-15-2005; amd. Ord. 2005-29, 5-24-2005)
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