CHRONIC NUISANCE PREMISES

Julia Carney

Communities throughout the country are adopting chronic nuisance laws that impose fines or even criminal penalties on property owners for nuisance activities occurring on the premises.  The purpose of these laws is to reduce the number of police calls to designated properties and to hold the property owner responsible for the actions of tenants, visitors or even tresspassers on the premises. Jurisdictions differ on which types of properties are eligible for chronic nuisance classification. Some cities apply the ordinance to all properties in the municipality including single family, multi-family, and commercial, while other jurisdictions only apply the law to multi-family properties. Each community defines nuisance activities differently, but they generally identify conduct such as underage consumption of alcohol, public drinking, illegal possession of drugs, illegal possession or discharge of firearms, disorderly conduct, gambling, assault and battery as nuisance activities subject to the chronic nuisance law.  Generally, after a specific number of nuisance events, the municipality will begin billing the property owner for excessive numbers of police calls.

As these chronic nuisance laws are enacted at the local level, each ordinance is unique in what calls for police service qualify for enforcement action.  In some jurisdictions, such as Cincinnati, only a police response to a disturbance or a police officer’s determination of probable cause is necessary to determine that a nuisance activity has occurred.  In other municipalities, such as Pittsburgh, an arrest or citation for an offense is required for the police call to be classified as a nuisance activity.  Coaldale and Wilkes-Barr, Pennsylvania have some of the strictest standards, requiring a conviction for the offense in a court of competent jurisdiction.

There are also significant differences in what types of penalties are assessed for violation of the ordinances.  The majority of communities begin enforcement with either fines or reimbursement of costs for police services.  Although some jurisdictions, including Columbia, Missouri and Milwaukee, Wisconsin, provide additional criminal penalties, including incarceration, either as a punishment for maintaining a chronic nuisance premises or as a penalty for non-payment of fines and costs.

Chronic nuisance premises laws raise the issue of the right of municipalities to charge individual citizens for the receipt of public services. Generally, governments do not charge criminals or their victims for police investigation of criminal activity or the arrest of suspects.  Residents of high crime areas of a city are not required to pay higher taxes for police services than other residents of the same jurisdiction.  Similar ordinances requiring property owners to pay for public service have been challenged on equal protection grounds.  However, these challenges have generally been unsuccessful, as courts have upheld ordinances subjecting property owners to liability for firefighting costs when the fire spread beyond the owner’s property.¹  Courts have also upheld an ordinance that imposed garbage fees on a property owner based on the amount of trash a property generated,²  as well as one that required citizens who used emergency medical services to reimburse the city for a portion of the actual operational costs of the EMS run.³  These ordinances have been upheld based on a city’s police power “to adopt regulations necessary to preserve the health, welfare and safety of its residents.”⁴

Communities with large college student populations such as Columbia, Missouri and the Town of Narragansett, Rhode Island, located near the University of Rhode Island, have enacted ordinances with penalties for tenants and property owners for nuisance parties or unruly gatherings.  A recent decision by the United States Court of Appeals for the First Circuit, upheld the Town of Narragansett’s ordinance, which had been challenged on constitutional grounds by the University of Rhode Island Student Senate, as well as four students and three property owners who had been affected by the enforcement of the ordinance.⁵  The American Civil Liberties Union represented these Appellants and raised substantive and procedural due process claims, right to association claims, as well as equal protection and void for vagueness challenges.

The Narragansett ordinance empowers the police to intervene at and disperse gatherings that are creating a “substantial disturbance.”⁶   The police may only do so when the disturbance involves “a violation of law.”⁷  The ordinance outlines what types of unlawful conduct might constitute a violation including such activities as excessive noise, obstruction of public streets, illegal parking, public drunkenness or urination, or the service of alcohol to minors.  Once the police have intervened at the premises of the unruly gathering, the police are required to post the property with a ten-by-fourteen-inch bright orange sticker.

Even the court comments on the selection of the color orange as being analogous with Nathaniel Hawthorne’s The Scarlet Letter, as the sticker is required to remain on the building until the end of the school year.  The sticker states that if the police are required to intervene in any additional unruly gatherings during the school year, that the owners, residents, sponsors of the party, and any guests who cause a nuisance will be held jointly and severally liable.  Penalties for subsequent violations include monetary fines and community service, with community service being discretionary after the first violation subsequent to the posting of the property, but becoming mandatory for repeated violations.

Chronic nuisance ordinances are generally enacted to address quality of life issues.  The preambles of the legislation outline the intent to preserve the health, safety and welfare of the community.  The legislation often has findings that chronic unlawful activity adversely affects the peace and safety of neighboring residents and diminishes the quality of life in the surrounding area.  These ordinances establish that the public interest requires property owners to be proactive in preventing nuisance activity and makes the property owner responsible for any illegal activities on the property by tenants, visitors and in some cases even trespassers.  Penalties for violations may include monetary fines or charges as well as criminal sentences.

Laws such as the ones enacted by Cincinnati, Pittsburgh, Columbia, and Narrangsett have the potential to have large impacts on Greek chapter houses.  Once a property is identified as a “chronic nuisance,” heavy fines, or worse, are likely.  If a chapter runs afoul of a chronic nuisance ordinance, it is advisable to have legal counsel explore a constitutional challenge to the ordinance.  Despite the ruling in the URI Student Senate case, many chronic nuisance laws may be unconstitutionally vague, overbroad, or violate due process and equal protection rights.

¹  Ventura County v. Southern California Edison Co. 192 P.2d 512 (Cal. Ct. App. 1948).

²  Nat’l Props, Inc. v. Borough of Macungie, 595 A.2d 742, (Pa Commw. Ct. 1991).

³  Rizzo v. City of Phila, 668 A.2d 236 (Pa Commw. Ct. 1995).

⁴  Id at 238.

⁵  URI Student Senate v. Town of Narragansett, 2011 U.S. App. LEXIS 141

⁶  Id.

⁷  Id.