3-33
NARCOTICS AND GANG RELATED CRIME EVICTION PROGRAM:
3-33.1 Definitions:
For the purposes of this section, the following words and phrases shall be construed to have the meanings herein set forth:
a. Criminal street gang means any ongoing organization, association or group of three (3) or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in Penal Code section 186.22(e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity as defined in said section.
b. Diligently prosecute means filing an unlawful detainer action, including an action pursuant to California Code of Civil Procedure section 1161(4) and following the procedures described herein or seeking eviction where no unlawful detainer action is legally required; and pursuing such action with constant and earnest good faith effort in an effort to accomplish the vacation of the premises by the offending tenant(s) without unreasonable delays.
c. Extended occupancy motel room means any motel room that is rented to a person or persons whose occupancy exceeds twenty eight (28) consecutive days or twenty eight (28) days in any sixty (60) consecutive day period.
d. Gang member means any person who actively participates in any criminal street gang.
e. Gang related crime means any crime committed by a “gang member” as defined herein.
f. Illegal drug activity means a violation of any of the provisions of subsection 3-25.1 of this chapter or any provision of the California Health and Safety Code relating to the possession, sale, use or manufacturing of any controlled substance.
g. Controlled substance means a drug, substance, or immediate precursor, as listed in the uniform controlled substances act, Health and Safety Code section 11000 et seq.
h. Drug related nuisance means any activity related to the possession, sale, use or manufacturing of a controlled substance that creates an unreasonable interference with the comfortable enjoyment of life, property or safety of other residents of the premises or within a one thousand foot (1,000') radius from the boundary line of the premises. These activities include, but are not limited to, any activity commonly associated with illegal drug dealing, such as noise, steady traffic day and night to a particular rental unit, barricaded units, possession of weapons, or drug loitering as defined in Health and Safety Code section 11532, or other drug related activities.
i. Gang related crime means any crime motivated by gang membership in which the perpetrator, victim or intended victim is a known member of a gang.
j. Violent crime means any crime involving use of a gun, a deadly weapon or serious bodily injury and for which a police report has been completed. A violent crime under this section shall not include a crime that is committed against a person residing in the same rental unit as the person committing the crime.
k. Threat of violent crime means any statement made by a tenant, or at his or her request, by his or her agent to any person who is on the premises or to the owner of the premises, or his or her agent, threatening commission of a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, when on its face and under the circumstances in which it is made, it is so unequivocal, immediate and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety. Such a threat includes any statement made verbally, in writing, or by means of an electronic communication device and regarding which a police report has been completed. A threat of violent crime under this section shall not include a crime that is committed against a person who is residing in the same rental unit as the person making the threat. “Immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity of affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six (6) months, regularly resided in the household. “Electronic communication device” includes, but is not limited to, telephones, cellular telephones, video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term is defined in subsection 12 of section 2510 of title 18 of the United States Code, except that “electronic communication” for the purpose of this definition shall not be limited to electronic communication that affects interstate or foreign commerce.
l. Knowingly permit means having notice or knowledge of any illegal drug activity or gang related crime occurring on the premises and failing to take action to abate said activities.
m. Landlord means an owner of residential property who leases or subleases a rental unit to a tenant(s) on property within the city of Lynwood. “Owner” includes a person, corporation, partnership, or other legal entity and any agent or independent contractor responsible for leasing for the owner.
n. Offending tenant means any tenant who commits, permits, maintains, solicits or is involved in any illegal drug activity or gang related crime on the premises and at least one tenant of the premises has been arrested, cited and/or convicted of such illegal drug activity or gang related crime.
o. Premises means the interior of a rental unit and any accessory buildings and the land on which they are located, and the interior of any other residences leased by the same landlord and located at the same rental unit complex, including, but not limited to, common areas, walkways, garage facilities, private streets and alleys, halls, stairwells and elevators, and the portion of any public street which is immediately adjacent thereto.
p. Rental unit means any “dwelling” as defined in chapter 25 of this code, including, but not limited to, any single- and multi-family residence, duplex, court, condominium, apartment and/or townhouse in the city of Lynwood. The term “rental unit” shall also include any mobile home park or trailer park for which rent is paid, or for which rent is paid for the land upon which the mobile home or trailer is located, or both. This term shall also mean any recreational vehicle, as defined in California Civil Code section 799.24, if located in a mobile home park, trailer or recreational vehicle park, and for which rent is paid, or for which rent is paid for the land upon which it is located, or both. “Rental unit” shall also include any extended occupancy motel room.
q. Tenant means any tenant, subtenant, lessee, sublessee or any person entitled to the use or occupancy of a rental unit, or any other person residing in a rental unit, except “tenant” does not include any person under eighteen (18) years of age unless she or he is a legally emancipated minor. (Ord. #1608, §1)
3-33.2 Administrative Procedures:
The city manager of the city of Lynwood or his or her designated representative may promulgate such administrative procedures as may be reasonably necessary to implement and enforce the provisions of this section. (Ord. #1608, §1)
3-33.3 Implied Lease Term:
All leases of real property in the city of Lynwood used for residential purposes shall be deemed to include the following implied term constituting grounds for termination of the lease: The tenant causes or permits any illegal drug activity or gang related crime to occur on the premises. (Ord. #1608, §1)
3-33.4 Notice Of Violation:
a. To enforce the provisions of this section, the city manager may cause to be delivered to any landlord a written notice of violation advising that the city manager of the city of Lynwood has determined that the landlord of the rental unit is in violation of subsection 3-33.5 of this section.
b. The notice shall be delivered personally or by mailing it on the date of the notice via U.S. postal service, return receipt requested, to the landlord at his or her address as shown on the most recent county assessor’s rental property tax rolls, or to any other address for the landlord known to the city, or to the landlord’s manager of the rental unit. Separate notice also is provided to the offending tenant(s) in accordance with this subsection.
c. The notice of violation shall:
1. Identify the address of the rental unit, the unit number, where applicable, the offending tenant(s), a detailed description of the specific legal violation(s) which occurred, and the date(s) and time(s) of occurrence, and the resulting arrest(s) and/or conviction(s), together with sufficient documentation to aid the landlord in prosecuting the unlawful detainer action including, but not limited to, documented observations of a peace officer or any witness willing to testify to supply probable cause for the unlawful detainer action, records of arrest or conviction, or such other information in the possession of the sheriff’s department which evidences the public nuisance, illegal drug activity or gang related crime by a tenant of the rental unit. As to any offending tenant who is sought to be evicted based on allowing or permitting another person or cotenant to engage in illegal drug activity or gang related crime, evidence shall include information sufficient to conclude by a preponderance of the evidence that the offending tenant was aware of the illegal drug or gang related criminal activity and failed to take responsible steps to prevent or report the illegal drug or gang related criminal activity.
2. Notify the landlord that within thirty (30) calendar days of the date of mailing of the notice, she/he must either: a) serve the offending tenant or diligently prosecute either a three (3) day notice to quit or a thirty (30) day notice to vacate, or b) file a written appeal of the determination of violation with the Lynwood city manager.
3. The separate notice to the tenant(s) shall also include, in at least 14-point bold type, the following:
“Notice to Tenant”: This notice is not a notice of eviction. However, you should know that an eviction action may soon be filed in court against you for illegal activity as described above. You should contact your attorney or consult with a legal aid clinic if you have questions about the contents of notice, particularly if any of the following is applicable:
1. You are not the person named in this notice.
2. The person named in the notice does not live with you.
3. The person named in the notice has permanently moved.
4. You do not know the person named in the notice.
5. You have any other legal defense or legal reason to stop the eviction action.
d. The city manager, at least fourteen (14) calendar days prior to sending a notice of violation, shall send a letter to the landlord containing a notice that a specified tenant or occupant of the premises has been arrested or convicted for illegal drug activity or a gang related crime committed on the premises. (Ord. #1608, §1)
3-33.5 Landlords’ Duty To Abate:
a. A landlord shall not knowingly permit a tenant to use or occupy any leased, residential premises if the tenant commits, permits, maintains, solicits or is involved in any illegal drug activity or gang related crime on said premises that results in an arrest and conviction. This section is not violated unless and until a landlord fails to take abatement action pursuant to this section within the thirty (30) day period allowed.
b. A landlord who receives a notice of violation shall, within thirty (30) calendar days of the date of mailing of the notice, either:
1. Serve a three (3) day notice to quit or a thirty (30) day notice to vacate on the offending tenant(s), provide the city prosecutor or city attorney with all relevant information pertaining to the unlawful detainer case, and diligently prosecute the same, or
2. File an appeal with the city manager.
c. A landlord who has appealed a notice of violation and the notice has been affirmed shall within thirty (30) days of the date of mailing of the ruling serve a three (3) day notice to quit or a thirty (30) day notice to vacate on the offending tenant(s) and diligently prosecute the same.
d. Notwithstanding the provisions of subsection 3-33.5b of this section, the landlord of an “extended occupancy motel room”, as defined herein, who is not legally required to utilize the eviction or unlawful detainer procedures to evict a tenant, shall cause the removal of the offending tenant or file an appeal with the city manager within thirty (30) calendar days of the date of mailing of the notice of violation.
e. A landlord prosecuting an unlawful detainer action pursuant to this section shall, within seven (7) days of receiving an order or judgment from the court, deliver a copy of such order or judgment to the sheriff’s department.
f. Nothing in this section shall prevent a landlord from complying with this section by allowing the offending tenant(s) to voluntarily vacate the premises within the time period allowed.
g. A landlord shall not lease any rental unit that has been vacated according to the provisions of this section, or any other rental unit in the same rental unit complex, to an offending tenant(s) prior to the expiration of twelve (12) months following said tenant(s) vacating the rental unit. (Ord. #1608, §1)
3-33.6 Right To Appeal Notice Of Violation:
a. Any person upon whom a notice of violation has been served may file a written appeal of the notice of violation with the city manager of the city of Lynwood who shall cause the matter to be set for hearing. At least ten (10) days’ written notice of the date, time, and place of said hearing shall be given personally or served by first class mail on the date of the notice, addressed to the appellant’s last known business address. Service by mail shall be deemed to be completed at the time of deposit in the United States mail. Proof of giving the notice may be made by a declaration signed under penalty of perjury by any employee of the city which shows service in conformity with this subsection. The appeal, to be effective, must be filed with and received by the city manager within thirty (30) calendar days of the date of mailing of the notice of violation.
b. The city manager, or his or her designated representative, shall serve as the hearing officer and shall set said appeal for hearing within thirty (30) calendar days of receipt of the appeal application. Following the conclusion of the hearing, the hearing officer shall affirm, reverse, or reverse subject to conditions, the city manager’s notice of violation. The notice of violation shall not be affirmed unless the hearing officer finds that it contains sufficient evidence of a violation of the law by the offending tenant(s) to justify the filing of an unlawful detainer action by the landlord against the offending tenant(s). The hearing officer’s decision shall be based upon written findings, to be rendered within fourteen (14) calendar days of the conclusion of the hearing, and shall be final, notwithstanding section 20-7 of this code.
c. The landlord or his, her or its authorized agent may offer evidence at any appeal hearing of any safety related reasons that he, she or it has not or cannot pursue an unlawful detainer action against the offending tenant(s). If the hearing officer determines that credible evidence of a safety related reason has been shown which prevents or makes unreasonable the landlord’s pursuit of an unlawful detainer action against the offending tenant(s), the landlord may be relieved from his, her or its obligation to diligently prosecute an eviction or unlawful detainer action against the offending tenant(s), provided that:
1. The landlord executes a written assignment to the city prosecutor or city attorney of his or her right to bring an unlawful detainer action against the offending tenant(s), on a form prepared by the city prosecutor or city attorney; and
2. The landlord provides all relevant information in his, her or its possession, pertaining to the criminal activities occurring on the premises and to the unlawful detainer or eviction proceedings or action to the city prosecutor or city attorney, including, but not limited to, information as to the names and addresses of all occupants of the premises, their relationship to one another, if any, a copy of the rental agreement for the premises and any amendments thereto, copies of any correspondence, notices, warnings, or other documents relating to the tenancy of the offending tenant’s activities known to the landlord; and
3. The landlord agrees to reimburse the city for the costs of investigation, discovery, and reasonable attorney fees incurred by the city in prosecuting the eviction or unlawful detainer action, up to a maximum of six hundred dollars ($600.00). (Ord. #1608, §1)
3-33.7 Lien Authorized:
All reasonable costs, including attorney fees, incurred by the city shall be paid to the city within thirty (30) days of written notice by the city to the landlord, and if unpaid after thirty (30) days may become a lien against the subject property. In addition, any judgment for money, including permitted fees and costs, awarded to the city of Lynwood through an enforcement action pursuant to this section, may be recorded as a lien against the subject property and, if judgment is entered against multiple defendants, they shall be jointly and severally liable for any judgment so ordered. (Ord. #1608, §1)
3-33.8 Prohibition And Penalties:
a. It shall be unlawful for any person to violate any of the provisions or to fail to comply with any of the mandatory requirements of this section.
b. Actions to enforce the provisions of this section shall be governed by section 1-5 of this code shall be infractions. (Ord. #1608, §1)
3-33.9 Civil Remedies And Penalties:
a. In addition to any other remedy provided for herein, if the landlord fails to comply with the provisions hereof by filing a timely appeal of the notice of violation, or having failed to file an appeal or upon denial of an appeal, to file and diligently prosecute an eviction or unlawful detainer action against the offending tenant(s), the city prosecutor or city attorney may file and prosecute such action, in which the landlord and/or owner shall be joined as a defendant. Service of the summons and complaint upon the defendant, offending tenant(s), and owner/landlord shall be made in accordance with sections 415.10, 415.20, 415.30, 415.40 and 415.50 of the Code of Civil Procedure. Costs, including costs of investigation, discovery and attorney fees, may be awarded to the city in such action against both the offending tenant(s) and the landlord/owner who is joined as a defendant.
b. The violation of any of the provisions of this section shall constitute a nuisance and may be abated by the city of Lynwood through civil remedies, including, but not limited to, a restraining order, preliminary or permanent injunction, or any other remedy at law or in equity for the abatement of such nuisance.
c. A court rendering a judgment pursuant to this section may, in addition to any other remedies at law or in equity, impose a civil penalty in the maximum amount permitted by law, payable to the city of Lynwood, and require the payment of the city’s attorney fees, costs of investigation and discovery, and court costs. (Ord. #1608, §1)
3-33.10 Exceptions:
a. Nothing in this section shall be deemed to affect or impair the city’s right to determine that any owner occupied or rental property is being conducted in such a way as to constitute a public nuisance and to pursue available legal remedies relating to such nuisance pursuant to the provisions of section 3-13 of this chapter, or pursuant to California Health and Safety Code section 11571.
b. Nothing in this section shall prevent the city attorney or city prosecutor from reaching a compromise memorialized in writing with any landlord and/or tenant to abate and address any public nuisance related to the use or occupation of any rental unit involved in any illegal drug activity or gang related crime without completing the eviction process as described herein.
c. The provisions of this section shall be construed so as to not interfere with any right afforded any person under the state or federal constitutions, and to the extent any provision herein conflicts with any such right, the provision shall be deemed to be void and of no effect. (Ord. #1608, §1)