Sec. 62-65. Commencement of actions; burdens of proof; defenses; mitigation of civil penalty.
(a) Except in a proceeding under section 62-66, if after notice but prior to the commencement of proceedings pursuant to this division an owner specifically stipulates with the city that he or she will pursue a course of action as the parties agree will necessarily abate the conditions giving rise to the violation, the city may agree to stay the commencement of proceedings. However, if the city reasonably believes the owner is not diligently pursuing the action contemplated by the stipulation, it may then commence proceedings pursuant to this division.
(b) In an action seeking civil penalties from an owner or the closure of a structure as criminal nuisance property, the city shall have the initial burden of proof to show by a preponderance of the evidence that the structure is a criminal nuisance property.
(c) In any action brought to enforce the terms of section 62-62, evidence of a structure's general reputation and/or the reputation of persons residing in or frequenting it shall be admissible.
(d) In establishing the amount of any civil penalty requested, the court may consider any of the following factors, as they may be appropriate, and shall cite those found applicable:
(1) The actions taken by the owner to mitigate or correct the problem at the structure;
(2) The financial condition of the owner;
(3) Whether the problem at the structure was repeated or continuous;
(4) The magnitude or gravity of the problem;
(5) The economic or financial benefit accruing or likely to accrue to the owner as a result of the conditions at the structure;
(6) The cooperativeness of the owner with the City;
(7) The cost to the City of investigating and correcting or attempting to correct the condition; and
(8) Any other factor deemed by the court to be relevant.
(e) Relief to innocent owners—Affirmative defense. It shall be an affirmative defense to section 62-62, Criminal nuisance property prohibited, if the owner of the real property at issue:
(1) Did not have actual knowledge of the conduct constituting a criminal nuisance property, or notice of an act or circumstance creating the criminal nuisance property; and
(2) Upon learning of the conduct constituting a criminal nuisance property, took reasonable action to prohibit such use of the property; and
(3) Fully cooperated with all law enforcement agencies in any investigation and prosecution of the criminal acts relating to the criminal nuisance property; and
(4) Did not participate in the criminal acts.
(f) The court may require a property owner whose property has been deemed criminal nuisance property to have the property inspected by city inspectors and tri-county health inspectors, where appropriate, at the owner's expense, for the presence of environmental hazards, prior to the structure being re-occupied.
(1) If the property is found to have environmental hazards, the owner will bear the expense to have the hazards remediated.
(2) The owner will bear the expense of having a follow-up inspection by city inspectors and tri-county health inspectors to confirm the hazards have been remediated.
(3) During the remediation process, the owner shall continue to provide for the maintenance, environmental clean-up, sanitation, utilities, insurance, and security of the property. (Code 1979, § 26-19; Ord. No. 2018-33, § 6, 8-27-2018)