Public Nuisance Ordinance#
History of Public Nuisance Ordinance#
The purpose of the original Public Nuisance Ordinance (“PNO”) created in 2000 was to remedy chronic nuisance type activities at properties in Fort Collins using a civil abatement process where citing specific, individual nuisance violations of the Code were found to be ineffective in stopping the chronic problems that were adversely affecting neighborhoods. In practice, the utilization of the previous PNO was limited in recent years.
City staff analyzed the previous PNO and determined an update was necessary to address nuisance issues and to add new processes and enforcement tools that are practical from both an enforcement and administrative standpoint. For example, the changes to the PNO apply to “nuisance activities” that include criminal violations under the City’s Code, state law and the City’s various building and fire codes.
In late 2022 the City Council voted to enact a new version of the PNO. Highlights of it are discussed below.
2022 Public Nuisance Ordinance#
Public Nuisance, Chronic Nuisance Property, & Nuisance Activity#
The new PNO regulates two types of nuisances: (i) a “public nuisance”; and (ii) a “chronic nuisance property.' The existence of each depends on the occurrence or existence of multiple or continuing “nuisance activities” on a property.
A “nuisance activity” defined in the PNO includes 66 categories of various criminal and civil violations happening on the property that individually, or in combination, result in either a public nuisance or chronic nuisance property. These nuisance activities include:
- civil infractions under the City Code, such as tall weeds and grass, rubbish, and inoperable motor vehicles
- minor misdemeanor violations under the City Code, such as unreasonable noise, bodily waste, and nuisance gatherings
- more serious misdemeanor violations under the City Code, such as resisting arrest, assault, disorderly conduct, and building and fire code violations
- misdemeanors and felonies under State law, such as criminal mischief, assault, harassment, arson, firearms offenses, and drug-related offenses
A “public nuisance” is more generally defined, while the definition of a “chronic nuisance property” is tied to a certain number of nuisance activities occurring on a property within a set period.
A “public nuisance” exists when repeated nuisance activities (meaning more than one) have occurred on the property or a continuing nuisance activity exists on it causing an unreasonable risk of harm or injury to the public health, safety or welfare. This would include circumstances where the nuisance activities are unreasonably injuring, damaging, annoying, inconveniencing or disturbing the peace of members of the public with respect to their: (i) comfort, health, repose, or safety; or (ii) free use and comfortable enjoyment of their property and of sidewalks, streets, or other public spaces near the offending property.
A “chronic nuisance property” exists when:
- Three or more nuisance activities have occurred on the property within 90 days, or seven or more nuisance activities have occurred within one year, with each activity occurring on a separate day, but not applicable to a property having multiple residential units under common ownership (i.e., apartment complex)
- There are multiple residential units on the property under common ownership and six or more nuisance activities have occurred within 90 days or 10 or more nuisance activities have occurred within one year, with each activity occurring on a separate day
- Two or more nuisance activities involving drug-related activity have occurred on the property within 30 days, with each activity occurring on a separate day; or
- The property is an “abandoned property” and any number of nuisance activities have occurred or exist on it
The new PNO is designed to provide the City with alternative tools for enforcement depending on the circumstances.
The most basic is to provide the property owner and others in possession of the property, such as tenants, with written notice of the existence of the public nuisance or chronic nuisance property. The purpose is to give the owner and others noticed the opportunity to abate the nuisance activities promptly and voluntarily, or to work with the City in coming up with a plan to address the issue.
If the notice is unsuccessful in getting the cooperation of the person(s) responsible for the property, the next step might be to issue a citation to the noticed persons for a civil infraction. The punishment for the infraction would be a penalty assessment of $250 for the first offense, $500 for a second offense within 60 days, $1,000 for a third offense within 120 days, and $2,000 for fourth and subsequent offenses within one year. If the person cited does not voluntarily pay the penalty assessment stated in the citation, the civil infraction would be tried in Municipal Court.
If the notice and any citations are unsuccessful in remedying and stopping the nuisance activities, the next step might be to consider issuing a citation to the property owner or other responsible persons for a misdemeanor offense. This offense would be subject to the City’s same maximum penalties it imposes for other misdemeanors, which are a fine and court surcharge not to exceed $3,000 or 180 days in jail, or both.
Whether the responsible persons are cited for a civil infraction or misdemeanor offense, each separate day a public nuisance occurs or exists on a property, or the property continues to be a chronic nuisance property, is considered a separate infraction or offense.
If the notice and citations for the civil infraction and misdemeanor offense are unsuccessful, the tool remaining under the PNO would be for the City to file a civil abatement action in Municipal Court against the property owner and any other responsible persons. Under this civil proceeding, the City would ask the Court to issue temporary and permanent abatement orders requiring the owner and other responsible persons to abate the public nuisance or chronic nuisance property. The Court would enforce its order under its contempt powers. If an abatement order is issued and the person against whom it is directed fails to obey it, that is considered a misdemeanor violation under which the person could be arrested and prosecuted.
The City may also ask for the Court in the civil action to impose a civil penalty of not less than $100 but not more than $1,000 for each day the public nuisance or chronic nuisance continued to exist after the City served the initial notice to abate these conditions of the property. The City will then be entitled to a judgment for this civil penalty amount plus all its other costs, including attorney fees, that it incurred in pursuing its remedies under the PNO.
Other Significant PNO Provisions#
The new PNO continues important provisions that existed in the previous PNO. These include:
- The City’s code enforcement officers have the legal authority to enter the property to abate nuisances without a warrant when authorized under the Fourth Amendment
- City code enforcement officers have the legal authority to obtain a search warrant to inspect the property and abate a nuisance consistent with the Fourth Amendment
- The PNO is not intended to limit or prohibit the City or anyone else from pursuing any other remedies to abate a nuisance as are available under any other laws
- The City has the ability to file a lien against the property for the costs the City incurs in abating a nuisance
This PNO also adds new provisions:
- Describes the proof standards to be applied by the Municipal Court in determining whether an alleged nuisance activity occurred on the property – in criminal proceedings proof beyond a reasonable doubt and in civil proceedings proof by a preponderance of the evidence.
- States the City is not required in proving a nuisance activity that any person was cited, held liable for, or convicted in any court of the civil or criminal charge underlying the nuisance activity. However, the City will still be required to prove that the nuisance activity occurred by other evidence.
- States if a person is held liable for or convicted in the courts for the charge underlying the nuisance activity and that decision is final, this is to be deemed conclusive evidence by the Municipal Court in proceedings under the PNO that the nuisance activity occurred, but the City will still be required to prove the activity occurred on the property.
- Allows the Municipal Court to consider as a mitigating factor in proceedings under the PNO that the defendant was the victim or person harmed by the nuisance activity or activities forming the basis for the public nuisance or chronic nuisance property, but only if the Court also finds: (i) the defendant or someone acting on their behalf promptly reported the nuisance activity to law enforcement; and (ii) at the time of the activity, the defendant had reasonably effective means in place to prevent nuisance activities occurring on the property or to manage them if prevention not reasonably practicable. These means may include security cameras, security services, fencing, on-site personnel, and any other services, equipment, or facilities having as their function to prevent nuisance activities from happening on the property.