Jerry Kopel

Do you like to find a rose in every stinkhole? Here's one to add to your collection: Thank goodness the Denver Nuisance Abatement Ordinance wasn't a law in the 1920s when Denver (and Colorado) was dominated by the Ku Klux Klan.

During the worst period of the 20's, the police chiefs of Denver and Boulder were "supportive" of the Klan, at least according to the weekly Klan newspapers I read in the University of Colorado Norlin Library as a student. And South Park Hill, the area I live in, contained the most Klan members in Denver, according to the book "The Klan in the Cities".

At that time, the Klan was after Jews and Catholics. Blacks and Hispanics were only minor distractions. And Denver's present nuisance abatement ordinance which will be renewed and probably amended by City Council (if it hasn't already by publication time) would have been very attractive to them.

The ordinance is also a useful way to cut down on crime without getting criminal convictions. It is a civil action against property. However, PEOPLE pay the fines and PEOPLE have their property taken from them.

Language in the ordinance is draconian. But the City Attorney's office has been extremely skillful and smart in avoiding abuse in using the powers granted. As a consequence, court decisions based on the ordinance, which went into effect Jan. l, 1997, had not been appealed to higher courts during the first 16 months of its use.

Up until April, I had not read the ordinance or knew much about it. But when the bill was passed by City Council it included a Sunset repeal date of Aug. 1, 1998 and required a review by the seven member Denver Sunset Committee, of which I was, until I resigned in early May, a member and chairman.

On April 28th, the committee held a three hour public hearing on the ordinance at the downtown Denver Public Library attended by 200 persons. Our signup sheets for people wishing to testify indicated sixty percent of the audience opposed the ordinance. Unfortunately, only two of the seven members of the committee, myself and Margaret Browne, were present to hear testimony.

I came away from the hearing convinced that the City Attorney's office was "leaning over backwards" to go after only the clearest cases of violations. Lack of appeals was one result. And none of the many ordinance opponents who testified indicated they had been

cited or had property taken from them by the City Attorney.

Unfortunately, administrations come and go, but the ordinance will remain. A new City Attorney in a new administration may use the ordinance in a different fashion. So it becomes important for everyone to realize what this law contains.

Six words form the basis of the nuisance abatement law: "Temporary restraining order" (TRO), "probable cause" and "shall". Let's assume the law is being used to seize real property.

The city attorney begins (in his sole discretion) by posting a notice on a building and mailing a letter to the owner indicating the property has been identified as a public nuisance and a civil action may be filed.

If he does post notice and mail, then ten days later, the city attorney may begin the action by filing a complaint in county or district court. It is supported by an affidavit showing there is "probable cause" to believe a Class One nuisance has occurred. This is done "ex parte", meaning the owner of a building or business is not notified of the hearing. "Probable cause" is the same level of evidence that is needed to obtain a search warrant. It is near the bottom as to the value of the evidence provided.

If the court finds there is probable cause, it "SHALL" issue an ex parte temporary restraining order (TRO).

The city attorney posts a notice of the TRO on the property and serves a summons and complaint and TRO on the owner. The court has no discretion as to what the TRO provides. That is at the discretion of the city attorney who chooses from a menu provided in the ordinance, including potential seizure of the real estate.

The ordinance allows the service of the summons and complaint on the owner to be made by first class mail, whether or not the mail is ever received. The city attorney claims to disregard that language and provides personal service.

Ten days after service, if the owner seeks to vacate the potential seizure of his business, he must file a motion with the court, he must have a hearing on the motion within 20 days after the original service, and must personally serve the city attorney (nuisance abatement coordinator). What if the motion is not heard within the 20 days period, even if it is not the fault of the building owner? Tough luck. Failure "waives the motion". The TRO is triggered into being, and remains in place "until after trial on the merits".

If the hearing is held for return of the seized property, the city has the "burden of proof" that there is probable cause. The court can admit "hearsay evidence" such as an officer testifying "a lot of the neighbors told me there was a disturbance of the peace". The

property owner, by a preponderance of the evidence, must prove a negative: That there is "no probable cause".

Innocence is NOT a factor. In the policy statement of the ordinance "The remedies provided...are directed at the property involved without regard to...innocence of those who hold (rights to the property). And "it shall be unlawful for any owner to...fail to prevent, or otherwise let happen, any Class One Nuisance on any property in which they hold any legal interest."

What is a Class One Public Nuisance? A lot of serious crimes are listed as well as "two or more offenses of disturbing the peace within any 180 day period". Of course, this being a civil action, it is not necessary to "prove beyond a reasonable doubt" that a crime occurred.

At the public hearing, Peter Meersman, lobbyist and executive for the Colorado Restaurant Association, testified in opposition to the ordinance, citing the potentially disastrous consequences for a restaurant that can be seized under the claim of disturbing the peace.

It isn't necessary for the city to actually go to trial and win on the merits to do tremendous damage. There can be seizure of a building under the TRO, based upon very flimsy "evidence" of probable cause, with no discretion by the court as to what happens.

The present city attorney and the present administration isn't going to do that. But what about the next one?

If the Klan in Denver had had this power in the 1920's, how many businesses owned by Catholics and Jews would have survived?

 

Jerry Kopel writes a column for the Statesman based on 22 years past experience as a state legislator.


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