(a) Findings. The City finds that the use, sale, furnishing, giving or possession of controlled substances or drug paraphernalia on any property, resulting in the presence of dangerous substances, criminal activity, and/or disruption of the peace and quiet in the neighborhood surrounding the property, creates a health and safety hazard and public nuisance.
(b) Definitions. For purposes of this section, the following definitions apply:
(2) "Controlled substances" means one or more controlled substance so classified under the provisions of West Virginia Code Chapter 60A.
(3) "Drug paraphernalia" means items as defined in West Virginia Code 47-19-3.
(4) "Possession" includes constructive possession. Possession shall be inferred if controlled substances and/or drug paraphernalia have been present on any property with such continuousness or recurrence to constitute a hazard to public health and safety.
(c) Declaration of Public Nuisance; Notices.
(1) Prior to a declaration of a public nuisance, the Code Official shall give notice to the property owner and provide an opportunity to be heard.
(2) Notice to the owner that a public nuisance may be declared shall include the following:
A. The location of the property at issue;
B. The reason(s) why such property qualifies as a public nuisance pursuant to this section;
C. The address where the property owner may send written objections to the declaration of a public nuisance for review by the Code Official;
D. The date, time, and address where the property owner may contact or meet with the Code Official concerning the public nuisance; and
E. Notice that failure to respond to the notice and cure the hazard to public health and safety will have serious consequences, including those permissible pursuant to this section.
(3) Notice to the owner that a public nuisance may be declared shall occur or be mailed at least fourteen calendar days prior to the deadlines for written objections and date for contact with the Code Official.
(4) Within 365 days after such notice, whenever the use, sale, furnishing, giving or possession of controlled substances or drug paraphernalia occurs on the property, and controlled substances and/or drug paraphernalia have been present on the property with such continuousness or recurrence to constitute a hazard to public health and safety in the reasonable opinion of the Code Official, the Code Official may declare such property a public nuisance.
(5) Notice to the owner that a public nuisance has been declared shall occur within reasonable time after such declaration, include the date such declaration was made, and state the location of the property at issue.
(6) Any notice to the property owner pursuant to this section shall consist of either personal service or certified or registered U.S. mail, return receipt requested, to the owner in whose name the property appears upon the last local tax record. If service cannot be obtained by personal service or certified or registered mail, the City may publish notice in a newspaper of general circulation in the City in lieu of such service.
(d) Persuasive Presumption of a Public Nuisance. It shall be a persuasive presumption that a property is a public nuisance if the following criteria are met:
(1) Prior to notice pursuant to this section, controlled substances and/or narcotic paraphernalia have been used, sold, furnished, given or possessed on the property, or the property has been raided by one or more law enforcement officials and controlled substances and/or drug paraphernalia were found during such raid; and
(2) Written notice pursuant to this section has been provided, mailed, or published that a public nuisance may be declared, and the deadlines for written objections and date for contact with the Code Official under such notice have expired; and
(3) Within 365 days after such deadlines expired, controlled substances and/or narcotic paraphernalia are again used, sold, furnished, given or possessed on the property, or the same property is raided again and controlled substances and/or narcotic paraphernalia are found during such raid.
(e) Abatement; costs and expenses.
(1) At any time, the Code Official may propose and/or approve a written plan for the abatement of the public nuisance. The Code Official may suspend further action pursuant to this section while the property owner is in compliance with the written abatement plan.
(2) Once the Code Official declares a property to be a public nuisance, then, in addition to any other available remedies, the Code Official may prohibit the occupancy of the property, wholly or in part, and may padlock and/or board up the building for a period of up to one year.
(3) The property owner shall be liable for the full cost and expense of (A) any and all City employees utilized to padlock or board up the building, including any and all employees utilized to remove padlocks and/or boarding devices, and (B) the full cost and expense of any and all law enforcement activity, including arrests and drug raids, related to the property. Such costs and expenses shall be a lien against the real property upon which such cost was incurred.
(f) Appeal. The property owner may appeal the Code Official's declaration of a public nuisance pursuant to this section to the Circuit Court of Kanawha County within thirty days after notice that a public nuisance has been declared was provided, mailed, or published.
(Ord. 2249. Passed 9-21-17.)