Sec. 460.106. - Sanitary nuisance abatement.

(a) "Sanitary nuisance" defined. A sanitary nuisance is the commission of any act, or the keeping, maintaining, propagation, existence or permitting of anything by any person by which the health or life of another may be seriously threatened or impaired, or by or through which, directly or indirectly, disease may be caused. Without limiting the scope of the foregoing definition, the following conditions constitute prima facie evidence of the maintenance of a sanitary nuisance: (1) Untreated or improperly treated human waste, garbage, offal, dead animals, dangerous waste materials from manufacturing processes harmful to human or animal life, and air pollutants, gases and noxious odors harmful to human or animal life. (2) Improperly constructed or maintained septic tanks, water closets and privies. (3) Keeping of diseased animals dangerous to human health. (4) Unclean or filthy places where animals are slaughtered. (5) The maintenance of a condition capable of or favorable to breeding flies, mosquitoes or other arthropods capable of transmitting, directly or indirectly, diseases to humans. (b) Nuisance prohibited. No person shall commit, maintain or contribute to a sanitary nuisance, nor allow a sanitary nuisance to exist or to be created with respect to any matter, thing or premises which he owns, has possession of, or controls. Any person who creates, keeps or maintains a sanitary nuisance shall be guilty of a class D offense. (c) Authority to abate sanitary nuisances. In addition to other remedies provided in the Health Code, the Director is authorized to abate any sanitary nuisance in the City. The procedures specified in Chapter 370 shall be available for the abatement of any sanitary nuisances; the territorial limitation contained in Chapter 370 shall not apply when the procedures are used under the authority of this Chapter. (d) Emergency abatement. (1) Summary action. If the Director determines that a sanitary nuisance constitutes such grave danger to the public health or safety that resort to the procedures specified in Chapter 370 can only be had at the public peril, the Director may take such summary action as is reasonably necessary to abate the nuisance. In the exercise of this emergency and summary authority, the Director may act without the posting or service of any notice and without any opportunity for a hearing being given before the nuisance is removed, terminated or abated; provided, that the Director shall post on the property whereon the sanitary nuisance is located, at the time that the nuisance is removed, terminated or abated, a notice containing: (i) A description of the sanitary nuisance. (ii) A statement that the Director is exercising the emergency and summary authority granted by this Section. (iii) If the sanitary nuisance is not a natural sanitary nuisance, a statement that the person or persons committing, creating, keeping or maintaining the sanitary nuisance shall be responsible for reimbursing the City, within ten days after removal, termination or abatement, for the cost of the removal, termination or abatement, failing which the City may recover such cost by appropriate legal proceedings. (iv) A statement that any person aggrieved by the summary action being taken by the Director may, within 24 hours after the posting of the notice, request a hearing before a hearing officer upon request to the Director, stating the name, address and telephone number of the Director. (2) Hearing and decision. (i) Any person aggrieved by a summary action taken by the Director under subsection (d)(1) of this Section may, within 24 hours after the posting of the notice thereunder, request a hearing before a hearing officer, by filing a written petition with the Director or with the hearing officer assigned to conduct the hearing. The hearing shall be held not more than 24 hours after the request therefor shall have been made. Upon receipt of a request for a hearing the Director shall request the General Counsel to assign an Assistant Counsel as a hearing officer. (ii) The Director shall issue an order for hearing, which shall include at least the following: (A) The date, time and place of the hearing. (B) The name of the parties. (C) The name of the hearing officer. (D) A plain short description of the sanitary nuisance which was removed, terminated or abated and a statement of the summary action taken by the Director to remove, terminate or abate the nuisance. A copy of the order for hearing shall be delivered or made available to all parties who are to appear at the hearing. Parties entitled to appear and be heard at a hearing shall include the following: (i) the Director, who shall be an indispensable party; (ii) the person requesting the hearing, who shall be an indispensable party; (iii) any other person alleging to have suffered injury by the summary action taken by the Director; and (iv) the United States, the State or any City agency having a direct interest in the summary action taken by the Director or in any final decision that may be made by the Director. (iii) Any party entitled to participate in a hearing shall have the right to: (A) Present his case or defense by oral or documentary evidence. (B) Submit rebuttal evidence and conduct such cross-examination as may be required for a full and true disclosure of the facts. (C) Submit for the consideration of the hearing officer proposed findings and conclusions and supporting reasons therefor. (D) Make offers of settlement or proposals of adjustment. (E) Be accompanied, advised and represented by counsel or represent himself. (iv) The hearing officer shall have authority to: (A) Administer oaths or affirmations. (B) Issue subpoenas for the taking of testimony or the production of evidence. (C) Rule upon offers of proof and receive relevant evidence. (D) Regulate the course of the hearing. (E) Hold conferences for the settlement or simplification of the issues by the consent of the parties. (F) Make temporary orders modifying or suspending the summary action taken by the Director, to the extent that such action can be modified or suspended, or permitting the continuance of the sanitary nuisance subject to such conditions as may be stated in the order. (G) Dispose of procedural requests or similar matters. (v) The petitioner shall be the first to offer evidence in support of his petition, and he shall have the burden of proof. Any oral or documentary evidence may be received and the exclusionary rules of evidence shall not be used to prevent the receipt of evidence having substantial probative effect; nevertheless, the hearing officer shall exclude irrelevant, immaterial or unduly repetitious evidence. (vi) The hearing officer shall have three days from the conclusion of the hearing in which to file his findings and conclusions with the Director, and the Director shall have three days from the receipt of such findings and conclusions in which to issue a final decision. A copy of the hearing officer's findings and conclusions shall be furnished to the petitioner and to any other party who participated in the hearing. A final decision by the Director may include any or all of the following relief or remedies: (A) Affirmation, modification or vacation of any temporary order made by the Director or the hearing officer before or at the hearing. (B) Confirmation, modification or revocation of the summary action taken by the Director, in whole or in part. (C) If the summary action was not proper, an order that the cost incurred by the City in taking such action shall be borne by the City without reimbursement by the person or persons who would otherwise be responsible therefor. (D) If the summary action was inappropriate or excessive and any party was injured thereby, an order fixing the monetary damages thereby occasioned and assessing the same against the City. (vii) The violation of any final decision issued by the Director or the failure or refusal of any party to observe the conditions thereof shall constitute a class C offense. (3) Collection of costs. The cost of removing, terminating or abating a sanitary nuisance other than a natural sanitary nuisance under the emergency and summary authority herein granted shall be paid by the person or persons committing, creating, keeping or maintaining the nuisance, unless the Director shall otherwise order. If the cost thus accruing and not excused by the Director is not paid within ten days after the removal, termination or abatement, the Director shall request the Office of General Counsel to institute such legal actions as may be necessary to collect such cost. For the purposes of this Section, a natural sanitary nuisance shall be a sanitary nuisance, as defined in subsection (a) of this Section, which arose and continued until removed, terminated or abated as a result of material forces and conditions, without intervention or modification by any human agency. (Ord. 70-650-526; Ord. 71-397-181; Ord. 73-1530-814, § 1; Ord. 83-591-400, § 1) Note— Former § 500.106 .