Nuisance abatement. Howard Paperner & Lilian Doan. Statutory Authority.
Howard Paperner & Lilian Doan
Section 71.780 RSMo
Section 82.1027 Nuisance Action
Section 82.300 Charter Cities
1. If any fourth class city shall enact an ordinance allowing for a civil cause of action for abatement of nuisances created by the accumulation of unsightly, dangerous, or noxious personal property within the borders of such city, the city may, upon successful prosecution of such cause of action, be awarded by the court reasonable attorney's fees incurred in such action
2. This section shall not be construed to allow any award of attorney's fees in any municipal court hearing on criminal charges or traffic violations.
Due Process & Nuisance Ordinance Violations
FACTS: Following the raid of appellant Lewis’ home and discovery of drug paraphernalia, City notified Lewis that they would conduct a hearing to determine if her house was a place used for the illegal use, keeping, or sale of controlled substances. The hearing was conducted by the City Manager. The City Attorney presented evidence. The City Manager determined appellant’s residence was a nuisance pursuant to City ordinance and ordered the premises unoccupied for three months.
Appellant urged Trial Ct. erred because:
*One person prosecuted and judged the merits of the case.
*City did not have the police power to order appellant’s residence closed.
*Decision was arbitrary and capricious and not supported by substantial evidence.
-Combination of roles by itself is not reversible error for denial of due process claim
Due process requires that Appellant had a fair hearing
Ordinance deemed legitimate if ordinance bears substantial and rational relationship to health, safety, peace, comfort and general welfare of citizens
Agency acts unreasonably and arbitrarily if findings are not based on substantial evidence in record
City Manager’s actions did not violate requirement of separation of powers
No due process violation
Knew claims against her
Represented by counsel at hearing
Had opportunity to cross examine witness
Presented evidence on own behalf
Ordinance within police power
Manager’s decision was not arbitrary or capricious because had substantial evidence.
What is the correct procedure?
Smoking Bans- Statutory Authority?
Section 71.760 (All Cities, Public Health) Smoke Nuisance
The emission or discharge into the open air of dense smoke within the corporate limits of any city of this state is hereby declared to be a public nuisance. The owners, lessees, occupants, managers or agents of any building, establishment or premises from which dense smoke is so emitted or discharged shall be deemed guilty of a misdemeanor, and upon conviction thereof, in any court of competent jurisdiction, shall pay a fine of not less than twenty-five dollars nor more than one hundred dollars. And each and every day whereon such smoke shall be emitted or discharged shall constitute a separate offense; provided, however, that in any suit or proceeding under this section, it shall be a good defense if the person charged with a violation thereof shall show to the satisfaction of the jury or court trying the facts that there is no known practicable device, appliance, means or method by application of which to his building, establishment or premises the emission or discharge of the dense smoke complained of in that proceeding could have been prevented.
Statutory Authority?- Smoking Bans (Cont’d)
Section 71.770 Smoke nuisance
All cities to which the provisions of section 71.760 are applicable are hereby empowered to enact all necessary or desirable ordinances, not inconsistent with the provisions herein, nor the constitution, nor any general law of this state, in order to carry out the provisions of said section.
Saint Louis County Smoking Ban
Possession of lighted or heated smoking materials in an enclosed place of employment or enclosed public place or within any other place specified in ordinance is unlawful.
St. Louis County Smoking Ban… but what of enforcement?
The ban is to be enforced by the St. Louis County Department of Health and by any authorized designee of the Director of the Department of Health. Section 605.080, St. Louis County Ordinances.