I am writing a series of articles for the GCNKAA Newsletter on chronic nuisance premises ordinances. My second article, which appears in the April issue, is available on their webpage here: http://gcnkaa.org/newsletter/
The Legal Case Against Cincinnati’s Chronic Nuisance Premises Ordinance
In my previous article, I gave a quick primer on general chronic nuisance property ordinances. I also mentioned a case in which my client challenged the City of Cincinnati’s Chronic Nuisance Premises Ordinance. That case, Downtown Property Management, Inc., v. City of Cincinnati, et al. Southern District of Ohio Case No. 1:10-CV-00523, was filed in the United States District Court in 2010.
The overall aim of the City’s ordinance was to impose responsibility on the landlord for the conduct of tenants, visitors or even trespassers. Once the City determined a property was a chronic nuisance, the City would then bill the landlord for police runs to the property, even if a visitor a trespasser to the property committed the conduct. The ordinance also subjected landlords to fines or even criminal prosecution for a two-year period, starting with the date of the initial bill for enforcement.
One of the most troublesome provisions of the ordinance centered on how the City limited the number of nuisance activities permitted per property. As an example, the ordinance allowed premises with 4 units up to 14 nuisance activities. At the same time, premises with over 40 units were limited to 11 activities. Therefore, premises with only 4 units were allowed more nuisance activities than premises with 200 units. The owners of larger complexes were treated much more harshly than owners of smaller complexes.
Another troubling provision allowed the City to count police runs as chronic nuisance activities even if the police did not make an arrest. Further, the ordinance provided no clear method to appeal determinations that a property was a chronic nuisance. DPM also objected to the vagueness of the ordinance because the ordinance failed to define which specific calls would count toward a property owner’s nuisance activity.
DPM’s complaint included eight total claims, including claims for violating DPM’s substantive and procedural due process rights, and for violating DPM’s equal protection rights.
After prolonged litigation, the parties reached a settlement in December 2013. While Cincinnati denied it violated DPM’s rights, it agreed to pay $92,500 in legal fees. But more importantly, Cincinnati agreed to legislative and administrative enforcement modifications to the ordinance. The ordinance itself was amended to change the threshold levels of permitted nuisance calls for larger properties before a property could be declared a chronic nuisance. This change made the ordinance more equitable for owners of larger premises.
Cincinnati also agreed to amend its administrative rules of enforcement. These changes specified that certain classifications of calls for service would not count when determining the number of calls for chronic nuisance purposes. The City also agreed to exclude calls for service where the incident involved a trespasser, and calls that are made by the owner or owner’s agent provided that it either occurred in the presence or view of the owner or owner’s agent. Finally, the City agreed to exclude calls for service if the landlord could demonstrate that the tenant who caused the police run was evicted.
Because of these changes, owners of large premises are now treated more equitably. Further, all property owners have an ability to have numerous police runs excluded as calls for service under the ordinance. Not all police runs are automatically counted against a property owner now. This allows property owners to remove those problematic tenants and prevent the bad acts of a few tenants from having the property declared a chronic nuisance property.
The changes Cincinnati made to the ordinance and to the rules of enforcement greatly improved the ordinance. But the ordinance is still in place. In my next article, I will detail steps property owners can take when faced with chronic nuisance reports, including steps to have calls excluded and recommendations for abatement plans.
Please contact me with any questions you have concerning chronic nuisance ordinances.