Chapter 6.09
CHRONIC NUISANCE
Sections:
6.09.010 Purpose and authority.
6.09.060 Correction agreement.
6.09.070 Appeals to the hearing examiner.
6.09.010 Purpose and authority.
The mission of the city of Puyallup is to provide the citizens of Puyallup with a safe and healthy environment in which to live, work, and play. The citizens of Puyallup should be able to enjoy ownership, use, and possession of property without negative interference from chronic nuisance properties. The city council finds that it is a reasonable exercise of its police powers to require property owners and others exercising control over property to take reasonable steps to discourage and abate nuisance activities on their properties, and to penalize those who do not adequately discourage such activities. The city council further finds that increased cooperation between property owners and the city is integral in reducing such nuisance activity. (Ord. 3189 § 1 (Exh. A), 2019).
6.09.020 Applicability.
This chapter applies only to properties at which business activity is regularly conducted by the owner or person in charge of the property. (Ord. 3189 § 1 (Exh. A), 2019).
6.09.030 Definitions.
The definitions in this section apply throughout this chapter.
(1) “Business activity” means any activity that would constitute “engaging in business” under PMC 5.04.015, such as would require a person to register and obtain a business license.
(2) “Code enforcement officer” means the city code enforcement officer or his or her designees.
(3) “Control” means the power or ability to direct or determine conditions, behaviors, or activities occurring on a property.
(4) “Chronic nuisance property” means:
(a) A property that:
(i) Within Any 90-day period has had three or more major nuisance activities or five or more minor nuisance activities occur or exist upon the property or within 200 feet of the property that involve the person in charge of the property and/or any person associated with the person in charge of the property; or
(ii) Within any 365-day period has had five or more major nuisance activities or eight or more minor nuisance activities occur or exist upon the property or within 200 feet of the property that involve the person in charge of the property and/or any person associated with the person in charge of the property.
(b) Any two incidents of minor nuisance activity may be deemed equivalent to one major nuisance activity and aggregated on this basis with incidents of major nuisance activity to meet the standard of chronic nuisance property, as defined herein.
(c) The first major nuisance activity, or the first two minor nuisance activities, that occur upon the property or within 200 feet of the property that involve the person in charge of the property and/or any person associated with the person in charge of the property shall not be considered in the determination of whether a property is a chronic nuisance property if the activity is first reported to the Puyallup police department by the person in charge of the property or his or her representative in a timely manner, that is, either during or immediately after discovery that the activity is occurring or has occurred.
(d) No nuisance activity will be considered in the determination of whether a property is a chronic nuisance property if the activity involves domestic violence as defined in RCW 26.50.010, or is a crime that directly and proximately harms or substantially risks harm to the person or chattel of the person in charge of the property, his or her agent(s) or employee(s), or any person under the age of 18; provided, that the crime is reported in a timely manner to the Puyallup police department.
(5) “Major nuisance activity” means any instance of any of the following conduct, including the attempt/conspiracy to commit this conduct:
(a) A most serious offense as defined in RCW 9.94A.030;
(b) Any drug-related activity which constitutes a violation of Chapter 69.41, 69.50 (other than RCW 69.50.445), or 69.52 RCW;
(c) Any of the following activities, behaviors or criminal conduct:
(i) Any firearms or dangerous weapons violations listed in Chapter 9.41 RCW;
(ii) Any criminal street gang-related offense as defined in RCW 9.94A.030;
(iii) Any theft or robbery offense listed in Chapter 9A.56 RCW;
(iv) Assault in the third or fourth degree: RCW 9A.36.031 through 9A.36.041;
(v) Reckless endangerment: RCW 9A.36.050;
(vi) Prostitution: RCW 9A.88.030;
(vii) Promoting prostitution: RCW 9A.88.070 through 9A.88.080;
(viii) Permitting prostitution: RCW 9A.88.090;
(ix) Patronizing a prostitute: RCW 9A.88.110;
(x) Indecent exposure: RCW 9A.88.010.
(6) “Minor nuisance activity” means any instance of any of the following conduct, including the attempt/conspiracy to commit this conduct:
(a) Allowing offensive or unsanitary conditions: PMC 6.08.030;
(b) Opening or consuming liquor or marijuana in a public place: RCW 66.44.100 and 69.50.445;
(c) Disorderly conduct: RCW 9A.84.030; Chapter 9A.03 PMC;
(d) Criminal mischief, harassment, or malicious harassment: RCW 9A.84.010, 9A.46.020, and 9A.36.080;
(e) Impairment of streets or sidewalks: PMC 9A.06.010;
(f) Nonexempt public nuisance or disturbance noises: PMC 6.16.050 through 6.16.070;
(g) Unless otherwise labeled a major nuisance activity by this chapter, any activity that would constitute a nuisance under the PMC or RCW.
(7) “Owner” means any person who, alone or with others, has title or interest in any property.
(8) “Person” means an individual, group of individuals, corporation, partnership, association, club, company, business trust, joint venture, organization, or any other legal or commercial entity or the manager, lessee, agent, officer, or employee of any of them.
(9) “Person in charge” of a property means the owner and, if different than the owner, any other person in actual or constructive possession of a property, including, but not limited to, a lessee, tenant, occupant, agent, or manager of a property under his or her control.
(10) For the purposes of this chapter, a person is “associated with the person in charge of the property” if he/she is on the property or within 200 feet of the property as a guest, invitee, or customer of the person in charge of the property.
(11) “Property” means any land and that which is affixed, incidental, or appurtenant to land, including but not limited to any business or residence, parking area, loading area, landscaping, building or structure or any separate part, unit or portion thereof.
(12) “PMC” means Puyallup Municipal Code.
(13) “RCW” means the Revised Code of Washington.
(14) “Reasonable” means having a substantial relation to the goal of abating the conditions, conduct, or activities causing the chronic nuisance. “Reasonable” means not unduly burdensome; however, steps required by this chapter are not unreasonable just because the person in charge cannot afford to implement them. (Ord. 3189 § 1 (Exh. A), 2019).
6.09.040 Violation.
(1) Any property within the city of Puyallup which is a chronic nuisance property is in violation of this chapter and subject to its remedies;
(2) Persons in charge who permit their property to be a chronic nuisance property shall be in violation of this chapter and subject to its remedies; and
(3) Whenever the city issues a violation citation to more than one person because of a violation of this chapter, those persons shall be jointly and severally liable. (Ord. 3189 § 1 (Exh. A), 2019).
6.09.050 Procedure.
(1) The code enforcement officer may declare that a property is a chronic nuisance property, as defined in this chapter, when there are specific facts and circumstances establishing by a preponderance of the evidence that the definition has been met with respect to the property. Within 30 days of the occurrence of the last major or minor nuisance activity, the code enforcement officer shall provide written notice of this declaration to the person in charge of the property. The notice shall be served by means of personal service, or by mailing a copy of the notice to the person in charge of the property at his/her last known address, certified mail, return receipt requested, or by posting a copy of the notice conspicuously upon the property.
(2) The notice shall contain:
(a) The street address or a legal description sufficient for identification of the property;
(b) A declaration that the code enforcement officer has determined the property has become a chronic nuisance property with a concise description of the nuisance activities that exist or that have occurred;
(c) A demand that the person in charge respond to the code enforcement officer within 10 calendar days of service of the notice to discuss a course of action to correct the nuisance(s);
(d) A notice that, if the person in charge does not respond to the code enforcement officer as required in this section, or if the matter is not voluntarily corrected to the satisfaction of the code enforcement officer, the city may take other action against the property or person in charge up to and including imposing civil penalties, revocation of the business license of the person in charge, abatement by the city and assessment of costs as provided by PMC 6.08.236 and 6.08.237, or other lawful action against the property or the person in charge;
(e) The name and telephone number of the code enforcement representative who is responsible for handling inquiries from the person in charge of the property or others with an interest in the property;
(f) A notice that the person in charge has 10 days to appeal the determination to the city hearing examiner.
(3) When a notice is issued pursuant to this section to a person in charge other than an owner or an owner’s agent, a copy of such notice shall also be served on the owner of the property.
(4) For the first 45 days after the issuance of the notice, the city shall take no enforcement actions against the property under subsection (7) of this section; provided, that the person in charge takes all reasonable steps to eliminate the conditions, conduct, or activities which constitute a nuisance at the property. If, within this time period, or longer if agreed to by the code enforcement officer, the reasonable steps of the person in charge result in the elimination of the conditions, conduct, or activities which constitute a nuisance at the property to the satisfaction of the code enforcement officer, neither the code enforcement officer nor any other city employee shall take any of the steps articulated in subsection (7)(b) or (c) of this section.
(5) A person in charge who receives notice pursuant to this section must, within 10 calendar days, contact the code enforcement representative listed on the notice to establish a course of action to eliminate the conditions, conduct, or activities which constitute a nuisance at the property.
(6) If the person in charge agrees to a course of action to eliminate the conditions, conduct, or activities which constitute a nuisance at the property, a written correction agreement (“correction agreement”) conforming to the requirements of PMC 6.09.060 shall be executed.
(7) If, more than 45 days after the issuance of the notice, specific facts and circumstances demonstrate that another major nuisance activity has (or two or more minor nuisance activities have) occurred, the code enforcement officer may take any of the following actions as he or she deems appropriate given the circumstances:
(a) Amend the correction agreement in consultation with the person in charge;
(b) Issue a notice of Class 1 civil infraction pursuant to the procedures in Chapter 1.02 PMC, and may do so even if the nuisance activity did not occur in the presence of any city officer or employee;
(c) Suspend or revoke the business license of the person in charge pursuant to the procedures in PMC 5.04.100;
(d) Refer the matter for abatement by the city and assessment of costs as provided by PMC 6.08.236 and 6.08.237.
However, if the person in charge has timely undertaken in good faith the course of action documented in the correction agreement, neither the code enforcement officer nor any other city employee shall take either of the steps articulated in subsection (7)(b) or (c) of this section. In any action under this section to enforce an infraction, suspend or revoke the business license of the person in charge, or for recovery of costs related to city abatement, it shall be a defense that the person in charge timely undertook in good faith the course of action documented in the most recent correction agreement.
(8) If, after issuance of the notice, a period of 365 days elapses during which no major nuisance activity and no more than one minor nuisance activity has occurred at the property, the property shall no longer be deemed a chronic nuisance property, unless and until the property once again meets the definition for chronic nuisance property based on new nuisance activity. (Ord. 3189 § 1 (Exh. A), 2019).
6.09.060 Correction agreement.
(1) The city intends to work cooperatively with owners and persons in charge of chronic nuisance properties to agree upon reasonable steps to eliminate the conditions, conduct, or activities which constitute a nuisance at the property.
(2) A correction agreement is a contract between the city and the person in charge of the chronic nuisance property in which such person agrees to promptly take such steps, within a specified period of time, that are set forth in the correction agreement. The agreement shall be signed by the person in charge and, if the city deems necessary, the owner of the property. The correction agreement shall include, at a minimum, the following:
(a) The name and address of the persons in charge of the property;
(b) The street address or a description sufficient for identification of the property, building, structure, or land upon or within which the nuisance is occurring;
(c) A brief description of the nuisance activities to be eliminated;
(d) The steps to be taken to eliminate the nuisance(s), and a date or time by which the actions must be implemented or completed;
(e) An agreement by the person in charge that the city may inspect the property as may be necessary to determine compliance with the correction agreement; and
(f) An agreement by the person in charge that the city may abate the nuisance and recover its costs and expenses and monetary penalties pursuant to this chapter from the person in charge for the nuisance if the terms of the correction agreement are not met.
(3) The correction agreement may require that the owner or person in charge take any reasonable steps to eliminate the conditions, conduct, or activities which constitute a nuisance at the property. (Ord. 3189 § 1 (Exh. A), 2019).
6.09.070 Appeals to the hearing examiner.
(1) Any recipient of a notice under PMC 6.09.050 may appeal such notice according to the following terms:
(a) Such appeal must be filed within 10 calendar days from receipt of the notice.
(b) The appeal shall be submitted by filing with the city clerk a written notice of appeal (“petition”) to the hearing examiner of the city setting forth the grounds therefor.
(c) A copy of the petition must be provided by the appellant to the code enforcement officer and the city attorney on or before the date the petition is filed with the city clerk.
(d) The hearing shall be conducted in accordance with the procedures for hearing contested cases set out in Chapter 2.54 PMC.
(e) The hearing examiner shall set a date for hearing said appeal and notify the appellant by mail of the time and place of the hearing.
(f) The city shall have the burden of proof to establish by a preponderance of the evidence that the property is a chronic nuisance property.
(g) Copies of police incident reports and reports of other city departments documenting nuisance activities shall be admissible in such actions. Additionally, evidence of a property’s general reputation and the reputation of persons residing in or frequenting the property shall be admissible in such actions.
(h) The hearing examiner shall affirm or vacate the code enforcement officer’s determination that the property is a chronic nuisance property and shall issue a specific finding as to whether each instance of nuisance activity described by the code enforcement officer is supported by a preponderance of the evidence.
(i) The decision of the hearing examiner shall be final. The person in charge may seek review of the decision by the Superior Court of Washington in and for Pierce County within 21 days from the date of the decision. In the event the code enforcement officer’s determination is vacated by the hearing examiner, the city will not be precluded from issuing a new notice under PMC 6.09.050 if one or more new nuisance activities occur such that the property now fits the definition of chronic nuisance property.
(2) Any decision to suspend or revoke the business license of the person in charge of a chronic nuisance property may be appealed pursuant to PMC 5.04.100. (Ord. 3189 § 1 (Exh. A), 2019).
6.09.080 Burden of proof.
In any action against a person in charge to abate a chronic nuisance property or to recover penalties authorized by this chapter, the city shall have the burden of proof to show by a preponderance of the evidence that the property is a chronic nuisance property. In any action against a person in charge to recover penalties imposed under Chapter 1.02 PMC, the city shall have the additional burden to prove by a preponderance of the evidence that the person in charge failed to enter into or comply with the correction agreement, that such correction agreement was reasonable, and that the person in charge otherwise failed to otherwise eliminate the conditions, conduct, or activities which constitute a nuisance at the property. (Ord. 3189 § 1 (Exh. A), 2019).
6.09.090 Miscellaneous.
(1) Nothing in this chapter is meant to limit the powers of the city to address and abate nuisances under Chapter 6.08 PMC or any other provision of law.
(2) The city attorney is authorized to issue civil infractions under Chapter 1.02 PMC for violations of this chapter.
(3) The city of Puyallup does not intend for this chapter to be a land use ordinance under RCW 36.70C.020 or any other state or federal law.
(4) Nothing in this chapter is intended to, or does, create a private right of action against any property owner or person in charge to enforce the terms of this chapter. (Ord. 3189 § 1 (Exh. A), 2019).