Memorandum

City of Lawrence

Legal Services

TO:	David L. Corliss, Assistant City Manager & Director of Legal Services
FROM:	Scott J. Miller, Staff Attorney
Date:	January 4, 2005
RE:	Ordinance 7962 -- Amendments to Disorderly House Nuisance Ordinance

Over the last several months, a series of meetings have been held with representatives of various Lawrence neighborhood associations, other concerned citizens, and City staff to discuss the City’s existing disorderly house nuisance ordinance, Article 11 of Chapter 14 of the City Code.  The focus of these meetings was twofold.  First, various suggestions for changes in the language of the present ordinance were discussed.  Second, a critical look at the City’s internal enforcement procedures has been, and continues to be taken in an attempt to better identify problem properties and provide for more consistent and predictable enforcement efforts and outcomes.   In conjunction with these efforts, I was tasked with redrafting portions of the ordinance to improve both its enforcement and its legality.  In preparation for this assignment, I examined the ordinances of many other cities to determine what alternative measures are being taken elsewhere that might supplement or serve as an alternative to our existing ordinance.

Laws in Other Jurisdictions

The proliferation of ordinances throughout the United States on this subject clearly shows that the City of Lawrence is not alone in facing the issues presented by disorderly nuisance houses within the community.  Merely drafting an ordinance in the strongest possible terms does not, however, necessarily result in the most effective enactment.  The ordinance must be able to withstand judicial scrutiny.  The ordinance must not only meet the minimum requirements of the United States Constitution, including prohibitions regarding double jeopardy and due process requirements, but it must also fit under the statutory scheme of a given state.  What other communities have attempted often provides fresh insight into a problem, but those communities’ ordinances may not be susceptible to word-for-word adoption in our community due to the differences in state law.

Challenges to Enforcement of the Current Law & Staff’s Response

To the individuals who are being negatively affected on a frequent basis by the problems that the disorderly nuisance house ordinance is aimed at addressing, the length of time that it takes to recognize that a specific house falls within the ordinance and for the City to take steps to resolve the problem is the biggest single area of complaint.  Although certain steps can be taken to hasten the process, the fundamental nature of proceedings under the ordinance will result in a certain amount of delay.  In criminal proceedings speedy adjudication is valued but courts are not able to dispense with procedural safeguards that ensure attentiveness and thoroughness for the sake of expediency.  Therefore, one important goal in redrafting provisions of the existing ordinance must be to make it easier and quicker to administer without putting the entire ordinance at risk by failing to recognize that some degree of delay is likely in any criminal prosecution.   

Redrafting an ordinance may provide enforcement personnel with a better tool to address problem behavior in the community, but that tool must be effectively wielded for the overall effort to be successful.  Effective use of this ordinance can only take place if the City can overcome significant internal challenges arising from the unique demands of the ordinance.  Perhaps the single greatest internal challenge posed by any ordinance that is triggered by an accumulation of violations that may or may not be obviously related to one another is establishing an adequate means of offense tracking and communication between relevant City departments.  Enforcement activities usually start with the investigating officer, and this type of ordinance is no exception.  The coverage of an ordinance will be artificially limited if offenses occur on a property and the police officers who investigate fail to adequately inquire about the link between the property and the suspect.  Recognizing this limitation, the Lawrence Police Department and Neighborhood Resources Department have established a procedure to maximize enforcement of our current law, and the Police Department is attempting to find new ways to use existing technology to assist in the tracking of offenses.

Police supervisors have also been asked to emphasize the importance of documenting a suspect’s links to specific property.  Both the current law and proposed amendment are triggered by an accumulation of certain offenses.  Those offenses must be committed by the owner or occupant, the invitees of the owner or occupant, or people attending functions sponsored or permitted by the owner or occupant in order for them to count under the ordinance.  Documenting any of those relations, if they exist, is obviously crucial.  Under the current procedure, once property in potential violation of the ordinance is identified, a multi-pronged response should occur.

First, the Police Department drafts a letter to the owners and occupants of the property warning them about the alleged offenses and the City’s ordinances in an attempt to secure quick and voluntary compliance.  Captain Cobb of the Lawrence Police Department has had a good degree of success with this practice on a limited basis in cases involving noise complaints.  The owners of rental property who have been notified in this manner have been very responsive in evicting or otherwise removing the offending parties from the property prior to formalized proceedings.  The Police Department is attempting to expand the scope of its search to include other offenses of the type normally associated with a party house or disorderly house nuisance.  Second, when a potentially disorderly house is identified, Neighborhood Resources is alerted to investigate the property to ensure that there are no obvious and continuing violations of the City’s ordinances occurring on the property.  Finally, the City Prosecutor’s Office is made aware of the pending or closed cases that would support a disorderly house finding, and when such cases are disposed of then that office will notify the Police Department who can then determine if the threshold for formal action has been met.

If the legal requirements for a disorderly nuisance house finding are met, the case will be forwarded to the Legal Services Department.  Personnel in our department will review the conviction information and, if appropriate, will attempt to schedule a nuisance abatement conference.  Prior to such a conference, the other affected parties such as the property’s neighbors will be contacted for input on an appropriate resolution to the problem.  If the nuisance abatement efforts fail, criminal prosecution is in order.

As noted previously, a majority of citizen complaints regarding the current ordinance surround the length of and difficulty involved in successfully prosecuting a violation of the ordinance.  While in many disorderly house situations, the informal steps leading up to the prosecution appear to quickly resolve the problems, the ultimate tool to force compliance is the criminal proceeding.  Many of the frustrations that arise from the affected parties in this situation are inherent in any criminal prosecution.  The burden of proof in any criminal prosecution, whether the charge is speeding, a disorderly house nuisance violation, or first-degree murder, is the same.  The prosecution must prove each and every element of the case beyond a reasonable doubt for a defendant to be convicted.  This means that evidence gathering is often a meticulous process.  What people “know” and what is provable under the laws of evidence are often two different things.  The process from charging to trial is not set up to be immediate.  It takes time for a case to progress through the courts, and this time is often viewed as a failure of the system when someone is confronted with what they perceive to be an ongoing, sometimes daily problem.  There is some flexibility to the procedural rules regarding the scheduling of cases, but even with that flexibility quick results against an obstinate offender are not guaranteed.  These challenges exist in our current law, and while steps may be taken to diminish the aggravation and delay, they will continue to exist in some degree in any amendment to the current law.

AMENDMENTS TO THE CURRENT LAW

Ordinance 7962 proposes several changes to our existing disorderly house nuisance ordinance.  These changes fall into two distinct categories.  The first set of changes is aimed at speeding up the enforcement process, while the other category of modifications is directed at bolstering the ordinance against legal attack and making certain that it does not run afoul of recent changes in the law.

EFFORTS TO STREAMLINE ENFORCEMENT

Both the current ordinance and the proposed amendment are triggered by an accumulation of certain types of violations that may be associated with the property.  The existing version of the ordinance has been generally interpreted to require that an individual be convicted of two separate felonies or misdemeanors under Kansas or Lawrence law in order to start formalized proceedings under the ordinance.  Also, the current ordinance does not contemplate that someone charged with a crime might be given diversion instead of proceeding to formalized conviction, and does not count those diversions as convictions for the purposes of the disorderly house nuisance ordinance.

The proposed amendments remedy those perceived deficiencies through a new definition of the events that trigger the ordinance’s application.  While convictions of felonies or misdemeanors under the Kansas statutes, or public offenses punishable by fines and imprisonment under the ordinances of the City both still trigger the ordinance’s application, other related events do as well.  First, diversions trigger the application of the ordinance in the same manner as do convictions.  Second, the prosecution is given more freedom to immediately proceed after the constituent offenses have been committed without waiting for them to each wend their ways through the court system.  This freedom results from a redefinition of the events that trigger the application of the ordinance to include not only the end result of the criminal justice process such as a conviction, but instead to also consider the basic acts or failures to act that underlie each criminal charge.  This allows the prosecution to present actual evidence that would prove the criminal offense in the disorderly house nuisance proceedings, and should speed up matters considerably.

As this concept may be difficult to understand, an example may be in order.  Assume for a moment that the current ordinance is in effect.  A person is charged with a minor in possession of alcohol while attending a party at someone’s home.  Before the minor in possession offense can be used to trigger the nuisance house ordinance, the defendant must enter a plea of guilty or no contest and be found guilty, or be found guilty at trial.  This process can take several months for each offense.  If the person enters into a diversion agreement, the offense does not count at all.

Under the amended ordinance, the offense would still act as a disorderly house trigger upon conviction.  It would also act as a trigger if a diversion agreement were executed.  In appropriate circumstances, however, if a potential accumulation of alleged violations would be enough to trigger the application of the ordinance, the disorderly house nuisance ordinance could be immediately invoked.  In a trial on such a case, however, the prosecution would need to present sufficient evidence of the violation, proving it beyond a reasonable doubt, rather than just relying on a previously rendered conviction.  This increases the prosecution’s burden but is also gives the City more flexibility in how these cases are moved through the enforcement process.

It should be noted that in some circumstances, due to legal considerations such as compulsory joinder or other legal or practical reasons, it may not be possible to proceed before the underlying criminal offense has been otherwise adjudicated.  Even in such situations, the end result is no worse than under our current ordinance.  Also, certain classes of minor offenses such as traffic infractions, tobacco infractions and violations of the Standard Traffic Ordinance do not trigger the disorderly nuisance house ordinance’s application under the amended language.

The other change contained in the ordinance aimed at speeding its enforcement and strengthening its coverage centers around how many violations must be accumulated over a given period of time.  Under both the existing ordinance and the amended language, two or more covered violations that arise from separate events committed within any 365 day period trigger the ordinance’s application.  The amended ordinance also is triggered by any three or more violations committed by separate individuals out of the same facts or circumstances.  This means that if a single gathering gets so out of control that three different people are charged with offenses arising from the same incident, there is no need to wait for another triggering behavior to start enforcement action.  This provision was included at the behest of neighborhood groups who felt that the current definition allowed too much objectionable conduct before action could be taken.

AMENDMENTS TO IMPROVE THE LEGALITY OF THE ORDINANCE

In addition to the substantive changes described above, other proposed changes were included in an attempt to bolster the ordinance from potential legal attack.  First, an explicit penalty provision is added that establishes a fine of no more than $1000 and/or a 180 day jail sentence as the maximum penalties for a violation.  This does not represent any real change in the penalty levels the judge may assess after conviction.  Second, it changes the language regarding tenancy lists in the section setting forth potentially appropriate probation terms to comply with a Kansas law that would prohibit periodic tenancy lists, but would allow a single list to be compelled upon a violation of the law.  Last, it excludes the use of certain acts or convictions as triggering events where using them in that manner would create a defense of multiplicity or double jeopardy. 

In order for two offenses to avoid being multiplicious, each offense must contain at least one element that is not contained in the other offense.  If each offense does not contain an independent element, an individual may only be punished for one of the offenses.  Without this exclusion, it would be possible for the occupant of a house to personally commit two offenses, and then be prosecuted under the disorderly nuisance house ordinance for a third offense without committing any additional or new acts.  The disorderly house nuisance ordinance prosecution would place him in jeopardy of being again punished for things that he has already been punished for, and therefore would not be legal.  Under the amended ordinance, then, although the occupant’s two offenses could be used to prosecute the owner of the property under the disorderly nuisance house ordinance, it would not support a prosecution against the occupant.  

This may limit the effect of the ordinance in some circumstances, but because the person’s previous history of offenses should be considered in sentencing for subsequent offenses, especially of the same type, the court should still possess an adequate means of inhibiting feature illegal behavior.

I understand that some of these concepts are a little technical and complicated.  If I can be of help clarifying or explaining the proposed changes further, please let me know.