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On June 27, City Council unanimously approved a Nuisance Premise Ordinance, which is intended to provide tools to abate criminal offenses and code violations on all properties in the City, both owner-occupied and rental. Council also unanimously approved a Landlord Tenant Ordinance, which provides that if a tenant engages in or permits criminal activity on the rental property, the tenant may be evicted.
These ordinances contain significant changes from a Neighborhood Integrity Ordinance and a Licensing Ordinance proposed in January. Those earlier proposals drew widespread criticism from both landlords and tenants. In response, City Council formed a Neighborhood Integrity Subcommitee composed of three aldermen, Ann Rainey, Don Wilson, and Brian Miller, and three landlord representatives, Eric Paset, Dan Schermerhorn, and Michael Filipek. Together with City staff from the Police Department, the Health and Human Services Department, and the Law Department, the subcommittee developed the ordinances passed on June 27.
Some significant changes in the new ordinances include that 1) proof of a criminal conviction is not necessary to declare a property is a nuisance premise, 2) property forfeiture is no longer a remedy, and 3) the proposed licensing ordinance, which would have applied to all rental units, was dropped.
The Nuisance Premise Ordinance
The Nuisance Premise Ordinance puts an “affirmative duty to control and not encourage or permit” any activity that constitutes a “criminal aggravated offense” or a “non-aggravated offense of the City Code” on “any person who is an owner, property manager, occupant or tenant.” An “innocent third party,” however, will not be deemed to have encouraged or permitted the offense.
A “criminal aggravated offense” is defined to be a homicide, aggravated assault, aggravated battery, criminal street gang recruitment, unlawful conduct with street gang members, a criminal offense involving a deadly weapon, kidnapping and related offenses, armed violence, possession of explosives or incendiary devices, and theft and mob action, all of which are crimes under Illinois law. (Exceptions are made for domestic violence and sexual violence.)
A “non-aggravated offense” includes violations of the City’s code relating to the fire code, property maintenance code, zoning code, limits on the number of dogs, cruelty to animals, dangerous dogs, prohibited home occupations, selling controlled substances, disturbing the peace, resisting or interfering with police, and prohibited noises. It also includes prostitution and any other offense that constitutes a felony or Class A misdemeanor under State of federal law.
The ordinance provides that any premise with one or more aggregated offenses at any time and two or more non-aggravated offenses in a 12-month period “is hereby declared to be a nuisance premise.” Michelle Masoncup, Deputy City Attorney, told the RoundTable there is no requirement that a property owner have culpability for a property to be declared a nuisance premises.
Under the ordinance, it is unlawful for any person to maintain a nuisance premises or to cause one to be maintained.
The Chief of Police, in consultation with appropriate City officials, “may declare that the property is a nuisance premise.” If a property is declared a nuisance premise, the City and the owner must attempt to work out a plan to address the nuisance and ensure that it does not recur. If the parties reach an agreement and it is complied with, it will resolve the matter.
If the parties do not reach an agreement or an agreement is breached, the City may file an action in the Division of Administrative Hearings or in court to abate the nuisance. If the action is filed in the Division of Administrative Hearings, the ordinance provides that the “formal rules of evidence” do not apply, and the hearing officer may rely on affidavits submitted by police officers and City staff.
While the affidavits would apparently be admissible without prior opportunity for a property owner to cross-examine the police officers or other City staff who signed them, Ms. Masoncup told the RoundTable that a property owner will be permitted to present evidence, call witnesses, and cross-examine the City’s witnesses at the hearing.
The ordinance provides that if the judge finds that a nuisance premise exists, the judge “must” issue an order directing that the owner eliminate the nuisance. The ordinance also provides that the owner will be fined $500 for each violation.
Significantly, the ordinance provides that an offense may be proved by an arrest or by the issuance of a citation, plus “admissible corroborating evidence.” Ms. Masoncup told the RoundTable that it is the intent of the ordinance that this standard be used by the Chief of Police in determining whether a property is a nuisance premises and that this standard be used by a hearing officer in an administrative proceeding and by a judge in a court proceeding to determine whether a property is a nuisance premise.
In an administrative or civil court proceeding, the petitioner or plaintiff must generally prove its claims by a preponderance of the evidence and at times by clear and convincing evidence. The ordinance would purport to water down that burden of proof.
Amendments to the Landlord/Tenant Ordinance
Under the amendments to the Landlord Tenant Ordinance, a tenant, any member of the tenant’s household, a tenant’s guests, and any person under the tenant’s control must not “engage in” or “facilitate” or “permit” criminal activity on the rental premises or engage in or permit certain other conduct that jeopardizes the health, safety, and welfare of the landlord or other tenants. Criminal activity is defined to include the “criminal aggravated offenses” specified in the Nuisance Premise Ordinance.
The ordinance provides, as does the Nuisance Premise Ordinance, that the violation may be proved by an arrest or citation, together with admissible corroborating evidence.
A violation of any of these provisions is deemed to constitute a breach of the lease and grounds for termination of the tenancy and eviction. The landlord is also given the option of terminating the tenancy of an individual tenant or household member.
Legal Department and Aldermen Comments
The ordinances were approved by Council on June 27 without any discussion. When the ordinances were introduced on June 20, Ms. Masoncup, said the Neighborhood Integrity Subcommittee heard from individual citizens, landlords and non-profit organizations, and had many months of discussions that led to the development of the ordinances.
She said the Nuisance Premise Ordinance is really about promoting cooperation between property owners and the City to abate nuisances. She said “The majority of the owners are responsive to community concerns,” and the procedures requiring a meeting to work out a plan to abate a nuisance before proceeding with an administrative or court proceeding recognize this fact.
Ald. Rainey, the chair of the subcommittee, said the subcommittee really tried to get cooperation and buy-in from the landlords and owners in developing the new ordinances. She said not everyone agreed with everything, but there was not the substantial disagreement there was originally. “That we don’t have people screaming at us tonight is a really positive thing,” she said.
Landlords told the subcommittee that they had been attaching amendments to their leases relating to the tenants’ obligation to maintain crime-free housing, said Ald. Rainey. The subcommittee decided to incorporate crime-free provisions in the Landlord Tenant Ordinance.
Ald. Wilson, who prepared a flow chart outlining the process, said, “It was a really good collaborative process. The flow chart puts it in a format that makes it easy to follow. We’ve got a good product that addresses an actual specific issue and problem.”
The RoundTable asked the following questions regarding Ordinance No. 75-0-16 (the Nuisance Premise Ordinance) and Ordinance No. 71-0-16 (amendments to the Landlord Tenant Ordinance). The answers were provided by Michelle Masoncup, Deputy City Attorney.
Questions and Answers re Ordinance No. 75-0-16 (the Nuisance Premises Ordinance)
1. Question: The definition of “encourages or permits” in Paragraph E says an “innocent third party” will not be found to have encouraged, etc. Who is an innocent “third party? Since owners, tenants and other have an affirmative duty to control and not encourage nor permit criminal offenses, can they be an “innocent third party.”
Answer: If the individual can present evidence that they did not know or should not have known of the circumstances and criminal offense leading to City action under the nuisance premises flowchart, they would be considered an “innocent third party”.
2. Question: Paragraph H provides that “Any premise” with the requisite number of criminal offenses is “declared to be a nuisance premise.” There is no requirement that the owner have any culpability for a premises to be a nuisance premise. Is that correct? If an owner’s culpability is required to declare a premise is a nuisance premise, where is that provided? Under the proposed ordinance, could a building be declared a nuisance premises if three youth are shot while standing in front of the building, even if the owner has no control over the shooter? If not, what in the ordinance precludes that from happening?
Answer: Yes, the owner in the scenario presented would still be within the purview of this ordinance. The definition of “premises” in Ordinance 75-O-16 is not limited to just residential rental buildings; it includes all properties located in the City of Evanston.
3. Question: Paragraph G 2 provides that “An arrest or citation issued, supported by admissible corroborating evidence” is sufficient evidence that a violation has occurred. I have these questions: a) Is this intended to be the standard for the Chief of Police to declare that a property is a nuisance premises under paragraph H 2?
b) Is this intended to be the standard to be used by the judge in an administrative proceeding or the judge in a court proceeding? If so, does the City have authority to set the quantum of proof for an administrative or court proceeding?
Answer: Yes, this standard will be utilized and assessed for the alleged violation of the City Code, 9-5-4.
c) Is the reference to “admissible” evidence meant to mean admissible under Illinois law, or admissible under the standard of admissibility set forth in paragraph H 7?
Answer: The standard set forth in the Ordinance and evidence admissibility standards set forth in the City of Evanston Division of Administrative Hearings Rules and Regulations.
d) By providing that an arrest (which does not constitute evidence that an offense has occurred) plus some corroborating evidence is sufficient to declare a property a nuisance premises, are a property owners’ due process rights protected? How?
Answer: Yes. The Respondent in a Nuisance Premise prosecution case is permitted to call witnesses, submit exhibits, and conduct limited discovery.
4. Question: Paragraph H 7 says the formal rules of evidence will not apply in an administrative hearing, and it permits reports from the City and affidavits submitted by police officers, City inspectors, etc. to be admitted into evidence in administrative hearings: a) Is there authority for the City to set rules governing the admissibility of evidence in administrative proceedings? b) How will a defendant’s Sixth Amendment rights and right to cross-examine witnesses be preserved?
Answer: Respondents/Defendants to a nuisance premise prosecution effort are entitled to present evidence and witnesses to the hearing officer or judge and permitted to cross examine any City witnesses. The City’s Division of Administrative Hearings has established Rules and Procedures for administrative hearings, which is permitted by Illinois law.
5.Question: Paragraph H 8 requires that an order contain certain specified things. Does a municipality have authority to mandate that an administrative judge or a court enter a certain type of order?
Answer: If the City meets its burden of proof in a nuisance premise prosecution, the City will request an order from an administrative hearing officer or a circuit court judge to contain certain abatement measures and actions which we have titled an abatement order.
6. Question: Will decisions by an administrative law judge be reviewable under the Administrative Review Law?
Questions and Answers re Proposed Ordinance No. 71-0-16 (Amendments to the Landlord Tenant Ordinance)
1.Question: Section 2 provides that a violation may be proved by an arrest or citation and supported by admissible corroborating evidence. I have these questions: a) Is this intended to be the standard for the landlord to find that there has been a violation? b) Is this intended to be the standard to be used by the judge in a court proceeding, including an eviction proceeding? If so, does the City have authority to set the quantum of proof for a court proceeding?
Answer: The standard stated will be utilized by the City to understand if the nuisance premise flowchart is triggered. The Forcible Entry and Detainer Act, 735 ILCS 5/9-101, governs evictions proceedings in Illinois Courts and this Ordinance does not usurp this statutory role.
2.Question: Section 2 D provides that a violation of subsections A, B or C is grounds for termination of tenancy and eviction from premises. Paragraph 1 (under subsection 2 D) provides that an individual tenant or household member may be evicted. How are these to be interpreted together?
Answer: A landlord may evict a tenant, but it is not mandatory. If the offense is committed by an individual other than the tenant, the landlord may opt to take steps to ensure the individual that committed the offense is not permitted on the premises and keep the lease in place with the tenant.
The Department of Housing and Urban Development (HUD) issued new guidance on April 4, 2016 that precludes landlords from using the arrest of a prior arrest of an individual in deciding whether to rent to that individual. The guidance says that an arrest has little, if any, probative value. The guidance says:
“A housing provider with a policy or practice of excluding individuals because of one or more prior arrests (without any conviction) cannot satisfy its burden of showing that such policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest. 25 As the Supreme Court has recognized, “[t]he mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense.”26 Because arrest records do not constitute proof of past unlawful conduct and are often incomplete (e.g., by failing to indicate whether the individual was prosecuted, convicted, or acquitted), 27 the fact of an arrest is not a reliable basis upon which to assess the potential risk to resident safety or property posed by a particular individual. For that reason, a housing provider who denies housing to persons on the basis of arrests not resulting in conviction cannot prove that the exclusion actually assists in protecting resident safety and/or property.”