(a) Administration.
(1) Purposes. There exists in the City premises that are habitually used in violation of the law and/or consistently disturbs the peace and quality of life for neighboring residents. City Council believes residents are frightened away, and reinvestment is discouraged in neighborhoods with these types of properties. This section is to protect the public health, safety and welfare in all neighborhoods, residential and nonresidential, by clearly defining what constitutes a chronic illegal use of property and declaring such use as a nuisance; establish means whereby the City, under its police powers, may remove or abate chronic nuisances after notice and opportunity to be heard and to cure and assess for the cost thereof in an effort to improve the quality of life in neighborhoods throughout the City of Vandalia.
(2) Existing remedies. The provisions in this section shall not be construed to abolish or impair existing remedies of the City or its officers or agencies relating to nuisance properties. This section shall not be deemed to be a limitation or restriction on the authority of any department, division, official, or employee of the City, but shall be deemed as an enlargement of any authority existing by virtue of the statutes of this state or any ordinance heretofore enacted by the City. Nothing herein shall prevent of limit police enforcement or applicability of law enforcement provisions of the State of Ohio and/or City of Vandalia.
(b) Definitions.
(1) For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning:
A. "Administrative and law enforcement costs" means the cost of enforcement under division (g)(3)A. of this section and/or any civil fine under division (g)(3)B. of this section.
B. "Chronic nuisance activities" means any of the following activities, conduct or behavior whenever engaged in by premises owner, operator, or occupant of a premises:
1. Offense of violence as defined in R.C. § 2901.01 excluding R.C. § 2919.25 Domestic Violence;
2. Making a false alarm or perpetrating a hoax weapon of mass destruction as defined by R.C. § 2917.32 and 2917.33;
3. Disrupting public services such as, but not limited to fire and police services as defined by R.C. § 2909.04;
4. Felony drug trafficking, manufacturing, processing or possession activity as defined in R.C. § 2923.01;
5. Disorderly conduct as defined in R.C. § 2917.11;
6. Gang related activity as defined in R.C. § 2923.41;
7. Drug sale or use as defined by R.C. Chapter 2925;
8. Compelling or promoting prostitution, procuring, soliciting or loitering to engage in solicitation, or prostitution as defined by R.C. §§ 2907.21 through 2907.25;
9.
Public gaming as defined in R.C. §§ 2915.02 through 2915.04;
10. Advertising of massage, relaxation massage, any other massage technique or method, or any related service, with the suggestion or promise of sexual activity as described in R.C. § 2927.17;
11. Violations of the City of Vandalia Code §§ 1482.18, 1482.19, the Ohio Building Code, Ohio Fire Code and the Southwest Ohio Fire Safety Council Unified Standards.
C. "Chronic nuisance (residential)" means a residential property where multiple chronic nuisance activities have occurred that are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event as follows:
1.
Three or more chronic nuisance activities having occurred at a single-family premise, whether a single-family residence or rental unit, on separate, non-consecutive days during a 120-day period and in which a majority of such events subsequently result in a guilty adjudication or guilty or no contest plea; or
2. Within a 120-day period, the following number of nuisance activities has occurred at a multi-family residential premises and in which a majority of such events subsequently result in a guilty adjudication or guilty or no contest plea:
a. Premises with two, three, or four residential units: six nuisance activities;
b. Premises with five to nineteen residential units: fourteen nuisance activities;
c. Premises with twenty to thirty-nine residential units: eighteen nuisance activities; or
d. Premises with over forty residential units: twenty- five nuisance activities.
D. "Chronic nuisance (commercial)" means a commercial property where multiple chronic nuisance activities have occurred that are not isolated, and are not so closely related to each other and connected in time and place that they constitute a single event as follows:
1. Five or more chronic nuisance activities having occurred at a single commercial premise on separate, non-consecutive days during a ninety-day period in which a majority of such events have resulted in a guilty adjudication or a guilty or no contest plea; or
2. When, three or more chronic nuisance activities, that have been adjudicated or plead guilty or no contest to, constitute a felony under Ohio law occur within a one-year period at a single premise.
E. "Code official" means the City Manager or his or her designee who is charged with the administration and enforcement of this section.
F. "Occupant" means the person residing in or having use of a premises. The same person or persons can be owner and occupant.
G. "Operator" shall mean any person, firm, company, corporation, association, including their employees, agents or contractors that control, operates or manages a commercial premise(s).
H. "Owner" means the owner of record of the premises.
(c) Procedure for Abatement of a Chronic Nuisance.
(1) When the Code Official believes that a chronic nuisance exists, he shall obtain written police reports and court documents regarding the premises.
(2)
After review of the items in division (c)(1) of this section if the Code Official determines that a chronic nuisance exists, he shall cause a written determination of the chronic nuisance ("notice of chronic nuisance") to be served on the owner and if applicable, occupant. For a commercial chronic nuisance, the Code Official may also serve the operator.
(3) The notice of chronic nuisance shall:
A. Describe with reasonable particularity the premises deemed to be a chronic nuisance;
B. Describe the chronic nuisance activities that have occurred at the premises, including the dates of the nuisance activities and any associated police report numbers and any court case numbers;
C. Provide that the owner and/or other party served with the notice of chronic nuisance may contest the determination of a chronic nuisance and present evidence, provide witnesses and testimony, cross exam witnesses, and be represented by legal counsel by filing an appeal.
D. A statement that the cost of future enforcement at the premises as a result of chronic nuisance activities may be billed to the premises owner and could become a lien against the property if not paid.
(4) The City may, at its option, elect to not utilize the procedure provided in this section, and proceed instead with the filing of an action in common pleas court or under other provisions of the City's codified ordinances or state statutes.
(d) Service of Notice of Chronic Nuisance. The notice of chronic nuisance shall be served on the owner and when applicable to other parties deemed to have an interest by one of the following methods:
(1) By personally giving the notice of chronic nuisance to the person being served and having a copy of the notice of chronic nuisance that has been served endorsed by the person personally serving the notice of chronic nuisance that fact on the copy which shall be part of the file retained by the City and leaving notice of chronic nuisance posted on the property.
(2) By leaving the notice of chronic nuisance with a person not less than eighteen years of age, residing with the person to be served; and having the notice of chronic nuisance posted on the property.
(3) By sending the notice of chronic nuisance by certified mail or express mail or commercial carrier service (utilizing any form of delivery requiring a signed receipt showing to whom delivered, date of delivery and address where delivered) to the last known address of the person being served, by using the address utilized by the Montgomery County Auditor, or such other address if known, or in the case of a business doing business in the State of Ohio at the address set forth in the office of the Ohio Secretary of State and having the notice of chronic nuisance posted on the property.
(4) By publication in a newspaper published in a newspaper of general circulation within the City, once a week for six consecutive weeks and having the notice of chronic nuisance posted on the property.
(5) Any other method as permitted by the Ohio Rules of Civil Procedure for the service of process.
(e) Appeal. After being served the notice of chronic nuisance the owner, occupant, or operator may appeal the determination that a premise is a chronic nuisance to the Vandalia City Manager.
(1) A written notice of appeal must be signed by the person appealing and filed with the office of the City Manager within ten working days after the date service of the notice of chronic nuisance.
(2) An appeal shall be a means of obtaining a hearing on a contention that the Code Official misinterpreted or misapplied some provision of this section.
(3)
The notice of appeal shall specify the notice of chronic nuisance at issue and set forth the grounds of the appeal and the appellant’s address for notice purposes.
(4) The appellant must deposit with the City Manager a fee of two hundred fifty dollars ($250.00), which sum shall be nonrefundable.
(5) A timely filed appeal under this division (e) shall stay any enforcement relating to the chronic nuisance being appealed.
(6) The City Manager shall select a time and place for a hearing on the appeal. Notice of the hearing date shall be sent to the appellant at the address set forth in the notice of appeal, and the Code Official(the "hearing notice"). If the appellant is not the owner of the property in question, such hearing notice shall also be sent to the owner.
(f) Appeal Hearing.
(1) The hearing as set forth in the hearing notice shall be conducted before the Vandalia City Manager. All hearings shall be open to the public. The owner, occupant, or operator or their representative(s), the Code Official, and any person whose interests are affected shall be given an opportunity to be heard. The Code Official shall present its evidence of chronic nuisance first. The other party(ies) may then present evidence, provide witnesses and testimony, and cross exam witnesses. The Code Official and any other party may be represented by legal counsel. The procedures shall not require compliance with strict rules of evidence, but shall mandate that only relevant information be received. The City Manager may issue subpoenas upon written request for the attendance of witnesses. A reasonable deposit to cover the cost of issuance and service shall be collected in advance from the person requesting such subpoena.
(2) At such hearing, all testimony shall be given under oath; a complete record of the proceedings shall be kept but including all documents presented and a verbatim record of the testimony of all witnesses; all witnesses shall be subject to cross-examination by the adverse party or their counsel; evidence that is not admitted may be proffered and shall become part of the record for appeal.
(3) The City Manager may continue the matter for a period not to exceed forty-five days for further investigation and disposition.
(4) The decision of the City Manager may be announced at the conclusion of the hearing and thereafter issued in writing, or the decision may be issued later in writing but no later than ten business days after the hearing. A copy of the written decision signed by the City Manager shall be mailed, with certificate of mailing, to the last known address of the owner, and other parties that appeared. It shall be the responsibility of the owner, or person representing the owner, to keep the Code Official apprised of his/her current mailing address.
(5) For the purpose of appeal pursuant to R.C. Chapter 2506, the final order shall be deemed to have been entered on the date on which the copy of the decision was mailed.
(g) Declaration of Public Nuisance.
(1) If after service of the notice of chronic nuisance no appeal is timely filed, or if an appeal is timely filed and the City Manager concludes that a chronic nuisance exists the premise shall constitute a public nuisance.
(2) After a premises has been deemed a public nuisance, the City may file action in an appropriate court to have the public nuisance abated.
(3) Notwithstanding anything else in Part Six General Offense Code of the Vandalia Codified Ordinances, after a premises has been deemed a public nuisance, upon subsequent occurrence of any chronic nuisance activity at any time within two years of the determination, the Code Official or his or her designee may:
A.
Calculate the cost of enforcement for such subsequent nuisance activities, which shall be the actual cost based upon expenses and the hourly wage of any personnel involved in the response to the subsequent chronic nuisance activity and any related costs of notice and declaration proceedings. The Code Official shall provide notice to the owner of the subsequent chronic nuisance activity, cost of enforcement, and requirement to pay such costs, at least thirty days before such costs are certified to the County Auditor for assessment against the property. The notice required by this division (g)(3)A. shall contain a description of the nuisance activity that is the basis for the notice, the cost of enforcement, a demand that it be paid within twenty days of the date of the notice, and the right of the owner to seek reconsideration under division (g)(4) of this section. Subject to any reconsideration, if the cost of enforcement is not timely paid, such amount may be certified to the County Auditor along with any assessment charges imposed by the county for placement on the tax duplicate to be collected as taxes for return to the City; and/or
B. Issue a civil fine to the owner as follows:
1. For the first chronic nuisance activity within a two-year period, two hundred fifty dollars ($250.00);
2. For the second chronic nuisance activity within a two-year period, five hundred dollars ($500.00);
3. For the third chronic nuisance activity within a two-year period, seven hundred fifty dollars ($750.00);
4. For each chronic nuisance activity after the third within a two-year period, one thousand dollars ($1,000).
Any civil fine not paid as prescribed shall be certified to the county in accordance with law to be assessed with any assessment charges imposed by the county for placement on the tax duplicate, as a lien on the real estate. The City may seek recovery of such costs under division (g)(3)A. or B. of this section by civil action.
(4) The owner may seek a reconsideration of the determination of a subsequent chronic nuisance at a premises that has been declared a public nuisance under this section and the administrative and law enforcement costs by filing a request for reconsideration with the City Manager within ten days of service of the notice sent under division (g)(3)A. of this section. If the City Manager or his or her designee finds that the facts presented do not constitute a chronic nuisance activity then the City Manager or his or her designee shall rescind the notice. If the City Manager finds by a preponderance of the evidence that the chronic nuisance activity occurred, regardless of any conviction or plea related thereto, and that any proposed administrative and law enforcement costs against the property is justified, the administrative and law enforcement costs may be assessed against the property in accordance with law.
(5) Administrative and law enforcement costs shall not be charged against an owner who establishes:
A. He had no knowledge of the nuisance activities on the premises and could not, with reasonable care and diligence, have known of the nuisance activities occurring on the premises; and upon receipt of notice of the occurrence of nuisance activities on the premises, he promptly took all actions necessary to abate the nuisance including, without limitation, compliance with the requirements of R.C. §§ 5321.17(C) and 5321.04(A)(9).
B. He or she was not the owner at the time of any of the nuisance activity that is the basis of the notice.
(6) A ruling by the City Manager that a premise constitutes a public nuisance under division (g)(1) of this section or that chronic nuisance activity occurred or that the amount of administrative and law enforcement costs are correct may be appealed by the appellant to the Montgomery County Common Pleas Court. The appeal must be filed within thirty days of the date of the applicable determination.
(7) Whoever fails to pay to the City the administrative and law enforcement costs shall be guilty of a misdemeanor of the second degree. Each day of violation shall be considered a separate offense.
(Ord. 19-28. Passed 12-2-19; Ord. 21-20. Passed 8-23-21.)