Chapter 9.20
PERMITTING THE USE OF PROPERTY FOR ILLEGAL USE OR SALE OF ILLEGAL DRUGS OR CONTROLLED SUBSTANCES, ILLEGAL GAMBLING, OR PROSTITUTION

Sections:

9.20.010    Permitting the use of property for illegal use or sale of illegal drugs or controlled substances, illegal gambling, or prostitution.

9.20.010 Permitting the use of property for illegal use or sale of illegal drugs or controlled substances, illegal gambling, or prostitution.

(A) Purpose. The Common Council finds it to be in the best interests of residents of the City and the general public to prevent illegal acts and to promote public peace, health, and safety, and to this end, the Common Council enacts this section.

(B) Permitting the Use of Real Estate for Illegal Drug Activity, Illegal Gambling, or Prostitution. No owner of real estate located in the City shall knowingly allow that real estate to be used as a site for any use or sale of illegal drugs or controlled substances, illegal gambling or prostitution after having received a second written notice from the Police Department that a present occupant or tenant of that property has been using or selling illegal drugs or controlled substances or allowing the using or selling of illegal drugs or controlled substances at that property, or has been engaging in or allowing gambling or prostitution at that address. A legal or equitable owner of such real estate is deemed to have knowledge of such activity upon receipt of notice set forth herein. For the purposes of this section, an “owner of real estate” is defined as any person who, alone, jointly or severally with others, shall have legal or equitable title or other possessory interest to any dwelling or dwelling unit, including, but not limited to, a purchaser under a contract for conditional sale of real estate commonly known as a land contract, and a lessee, sublessee, renter, or tenant who is allowing another person to occupy the dwelling unit. The definition of “owner” shall not include a mortgage lien holder or other lien holder holding an interest, which secures a debt or judgment, or a person deemed to be a legal owner who has notified the Police Department of the name(s) and address(es) of persons purchasing the property under a contract of conditional sale of real estate commonly known as a land contract.

(C) Notice. Notice shall be deemed sufficient if done by one of the following methods:

(1) Sending a copy of the notice by registered or certified mail, return receipt requested, to the address listed by the County Treasurer’s office for sending notice of property taxes, or to the residence, business address, or place of employment of the person to be notified;

(2) Delivering a copy of the notice to the person to be notified; or

(3) Leaving a copy of the notice at the dwelling or usual place of abode of the person to be notified.

If, after a reasonable effort, service is not obtained by a method listed above, service shall be deemed sufficient if notice is published pursuant to IC 5-3-1 in a newspaper of general circulation published in the City.

(D) Discrimination Forbidden. Nothing in this section shall be construed to encourage or authorize the discrimination by lessors against any persons based upon race, creed, religion, sex, age, national origin, familial status, or handicap. Rather, it is the intent of this section to hold persons accountable for acquiescing in or participating in the continued use of their property as the location of illegal activity, after having received notice as set forth in subsection (C) of this section.

(E) Reports, Investigations and Notices by the Police Department.

(1) A report of suspected illegal activities constituting the use or sale of illegal drugs or controlled substances, illegal gambling, or prostitution, by tenants, occupants and/or their visitors, guests or invitees, as observed by the owner or third persons including, but not limited to, other tenants of the property, persons residing or working in the vicinity of the property, or City officials or employees, shall be submitted to the Police Department and each such report or complaint shall be individually logged.

(2) Upon receipt of any report or complaint of such suspected illegal activities on the premises, a determination shall be made by the Police Department as to the need and nature of any further investigation including, but not limited to, the necessity for surveillance by the Police Department of such premises.

(3) First Notice. Upon a determination by the Police Department that such suspected illegal activity is taking place at a particular premises based upon lawfully obtained evidence, including, but not limited to, personal knowledge of a police officer, information obtained from a reliable source, evidence obtained pursuant to an arrest, or physical evidence obtained by a search warrant or other lawful means, a written notice shall be sent by the Police Department to the owner, as provided in subsection (C) of this section, of the real estate and a copy to the tenant or occupant whose premises is the subject of the investigation, by certified mail, return receipt requested, informing the owner that the initial investigation revealed alleged suspected illegal activity and the fact that there is an ongoing investigation. The notice shall inform the owner that the owner shall take legal action, within 30 days of the date of the letter, to abate such suspected illegal activity, including, but not limited to, filing an eviction action, and if this does not happen, of the intent of the Police Department to take further legal action. The notice shall further include a request of the property owner to whom the letter is addressed to specify in writing information concerning the existence of any contract for conditional sale of real estate, commonly known as a land contract, setting forth the name, address, and phone number of the purchaser under the land contract, and further specifying any other person who has a legal, equitable, or possessory interest in the dwelling or dwelling unit and the pertinent information, including, but not limited to, name, address, and phone number with respect to those individuals. Any owner who believes the determination by the Police Department of illegal activity on the premises is insufficient to permit an eviction of the tenant or other occupant may appeal that determination in writing within 30 days of the date of the first notice to the Board of Public Safety. The decision of the Board of Public Safety shall be final and based upon substantial evidence and in accordance with legal principles. The Safety Board shall hear such appeal at the first reasonable opportunity but no less than 10 days from the date of giving said appealing owner notice of the date, time, and place of the meeting at which the appeal shall be heard. During such appeal and before a decision is rendered by the Board of Public Safety, the City shall not commence an action against the owner for violation of this section. Failure to appeal to the Safety Board shall not prejudice the rights of the owner in any proceedings under this section.

(4) Second Notice. If the illegal activity has not been abated or an eviction action has not been commenced within 30 days of the first written notice, a second written notice shall be sent to the owner of the real estate, by certified mail, return receipt requested, or such other method as permitted in subsection (C) of this section, and shall inform the owner that the investigation at the premises is continuing, and that legal proceedings may be commenced pursuant to this section. Such letter shall inform the owner that his/her failure to take some form of remedial action within 10 days to abate the illegal activity, including eviction of those persons conducting the illegal activity, will result in legal proceedings against said owner for violation of this section. Such notice shall also request, of the person to whom the letter is being submitted, any and all information concerning the existence of any contract for conditional sale of real estate, commonly known as a land contract, and any other legal, equitable, or possessory interest in the dwelling unit by any other person or persons specifically requesting the name, address, or other pertinent information of said individual or individuals. Said owner or other individual receiving said written notice shall be required to supply said information requested. A copy of the notice shall be sent to the Chief of Police, the Law Department and to the tenant/occupant of the premises.

(5) If the owner of the property fails to take required legal action to commence an eviction action or abate the illegal activities within 10 days of receipt of the second notice, the Law Department may proceed to collect the fines provided in this section and/or proceed under State law to abate or enjoin any suspected illegal activity as defined herein constituting a nuisance as defined under State law.

(F) Criteria for Establishing a Violation. A violation of this section will be determined by the appropriate judicial authority based upon the totality of the circumstances present, including, but not limited to, that the owner has received notices of suspected illegal activity pursuant to subsections (B), (C) and (E) of this section.

(G) Eviction Proceedings as a Defense. No person shall be charged with the violation of this section if such person:

(1) Has instituted eviction proceedings within 30 days of receipt of notice of alleged criminal activities, in accordance with subsection (B) of this section, against the tenant or occupant whose suspected criminal activities would otherwise give rise to potential liability under this section;

(2) Has proceeded with reasonable diligence in the prosecution of said eviction proceedings;

(3) If any eviction proceedings are not completed within 30 days by reason of court-ordered delays in such proceedings, the person charged with the violation of this section must, nonetheless, move forward expeditiously with any such eviction proceedings; or

(4) Has initiated an action under IC 32-30-8-1 et seq. or any other similar eviction law which will cause such illegal activity to cease upon the property.

(H) Multiple-Unit Dwellings. In the case of a multiple-unit dwelling, the only person necessary to name in an eviction proceedings is the tenant/occupant occupying the actual unit involved with the suspected illegal activity described herein.

(I) Filing of Criminal Charges. Charging an owner of real estate with a violation of this section shall be an adjunct to, and not a substitution for, any criminal charges filed as a result of investigation by the Police Department against occupants or tenants of that owner’s real estate premises for use or sale of illegal drugs or controlled substances, gambling, or prostitution.

(J) Assistance by Chief of Police. The Chief of Police shall use reasonable efforts to train, educate, and assist owners of real estate in avoiding placing tenants or occupants in their real estate who are known violators of illegal activities enumerated herein.

(K) Nonexclusive Remedy. The provisions of this section shall not in any manner be construed to limit or be a condition precedent to bringing an action under IC 32-30-8-1 et seq. or under any other law.

(L) Violations. It shall be a violation of this chapter for any person to knowingly allow his/her property to be used for the activities which are prohibited by this section, or fail to comply with the terms of this chapter. The violation is by property address.

(M) Penalty. Any person who violates any provision of this chapter shall be subject to a civil penalty of $750.00 for the first violation at a dwelling unit, with the second violation at the same dwelling unit carrying a civil penalty of $1,500, and the third and subsequent violations at the same dwelling unit carrying a penalty of $2,500. Each day a violation exists shall be considered a separate violation and a court may assess a monetary civil penalty for each day a violation exists. The fines for the second and any subsequent violation shall be imposed only if the person fined was an owner in a previous violation.

(N) The police officers will appear in court to testify if subpoenaed by the property owners.

(O) Limited Indemnification. The City of Evansville shall provide a limited indemnification to an owner of real estate who has initiated eviction proceedings in court and is sued or a counterclaim is asserted by the individual who is sought to be evicted, under the following terms and conditions:

(1) The premises which are the subject of the eviction proceedings are located in the City of Evansville;

(2) Eviction proceedings are instituted in Vanderburgh County in compliance with the Indiana Trial Rules and State law;

(3) The owner of the property received notice from the Police Department under subsection (E)(3) or (4) of this section to abate the illegal activity on the premises and instituted eviction proceedings solely because of such notice;

(4) The owner instituted eviction proceedings within 30 days of receipt of the notice in subsection (E)(3) of this section or within 10 days of the receipt of the notice in subsection (E)(4) of this section;

(5) The owner has given the office of the City Attorney no less than 30 days’ written notice of the trial date of any claim, lawsuit or counterclaim against said owner, and no less that 72 hours’ written notice of any clam, lawsuit or counterclaim against said owner; any such notice shall be in writing and sent by U.S. mail return receipt requested;

(6) The claim, counterclaim or lawsuit is based upon an alleged illegality or unconstitutionality of this section or the negligence of the Police Department in providing information to the owner and relied upon by the owner as a basis of bringing an action against the tenant or other occupant of the premises sought to be evicted;

(7) The owner fully and expeditiously cooperates with the office of the City Attorney in defense of such claim, lawsuit or counterclaim, including but not limited to allowing the office of the City Attorney to intervene in the lawsuit and take control over the defense of such claim, lawsuit or counterclaim;

(8) The office of the City Attorney is permitted to pursue any and all appeals of the decision of the court on behalf of the owner; and

(9) The tenant or person sought to be evicted prevails on his claim, lawsuit or counterclaim solely based upon a finding of illegality or unconstitutionality of this chapter or the negligence of the Police Department in supplying the information to the owner and not on a finding of procedural wrongdoing or other improprieties or illegalities of the owner in pursuing the eviction. If the tenant or person sought to be evicted prevails on his claim, lawsuit, or counterclaim based upon any other reason, including, but not limited to, procedural wrongdoing, or the negligence, bad faith, or other impropriety or illegality of the owner, then the indemnity shall not apply. [Ord. G-2005-5, passed 3-15-05. 1983 Code § 15.150.012.]