Colorado Springs cops who are pushing the so-called Public Nuisance Ordinance say the measure is designed to target problem properties whose owners or tenants are repeatedly breaking the law, including engaging in prostitution, weapons and liquor violations, gang-related criminal activity and disturbing the peace.
Under the proposal, the city would be able to seize any property where such activities occur just one time. The ordinance's current wording stipulates the city can keep the property from three months to a year and any buildings on the property would be boarded up or even demolished.
Opponents of the measure -- which include realtor, neighborhood, apartment and beverage associations -- believe the broad-brushed wording of the ordinance leaves the potential for abuse.
If approved under its current form, the law would allow the city to seize any commercial or residential property in Colorado Springs in any one of hundreds of possible scenarios. Consider the following:
During a Fourth of July celebration, you and your friends set off a few fireworks in your backyard. Because setting off any incendiary device (which includes fireworks) is defined as a violation under the proposed ordinance, the city could seize your home.
Rival gang members start fighting in the park next to your apartment building. The fight proceeds onto your property, with gangbangers chasing each other through the apartment's parking lot. Shots are exchanged. The ordinance would allow property to be seized in the event of an unlawful discharge of a firearm. Though the gangsters were trespassing, the apartment building owner and/or manager could be held liable, and the property seized.
You and two pals decide to hold a Frisbee tournament in downtown's Acacia Park, defying the Colorado Springs law that prohibits that specific activity. As defined under the "Gang Related Criminal Activity" section of the ordinance, the house where you conspired the tournament in the park is grounds for confiscation.
You like to relax at home by painting in the nude. But a neighbor sees you through an open window, gets offended and calls the cops. As the ordinance is now written, you could be found violating the public indecency portion of the law and have your property seized.
You go out of town, and your teenage kids throw a couple of kegger parties. Under the portion of the ordinance prohibiting repeated (meaning more than once) selling or serving of any alcoholic beverage to an underage or intoxicated person, you are liable.
Ditto if you decide to let your own underage child have two beers at home.
According to Colorado Springs attorney Jack Scheuerman, even a City Council meeting could potentially be defined as a public nuisance if it gets rowdy enough, though it is doubtful that cops would attempt to board up City Hall.
"Every time we come up with a scenario like that [the cops] say, 'we don't intend to use it that way,' said Louis Linzmaier, president of the Southern Colorado Beverage Association. "However, how do we know how zealous the next guy will be?"
Three times in three years
Kimberlee Schreiber, president of the Apartment Association of Colorado Springs, echoed Linzmaier's sentiment.
"The police department keeps telling us that this ordinance is not about us, but it includes all property owners and property managers," she said. "They say they won't use it against us, but that's not what the ordinance says."
Police insist their intention is not to apply the ordinance in such broad-brushed strokes. However, opponents argue that nothing stops them from doing just that. How cops will equitably apply the law is not spelled out in the wording of the current ordinance.
In a March 16 letter to City Manager Jim Mullen, Police Chief Lorne Kramer outlined the need for the ordinance.
"The Police Department has often found itself in the position of having to deal with certain locations in the city where multiple calls for service, repeated violent criminal activity and an increasingly dangerous environment were becoming the norm rather than the exception," Kramer wrote.
Despite Kramer's claims, Deputy Chief Luis Velez this week said a review of cases indicates that, if it were in place, the proposed ordinance would have been used only three times in the past three years.
In at least one of those cases, which involved a telemarketing company where noise and vandalism were causing problems for adjacent homeowners, the state's public nuisance statute was evoked to resolve the problem, Velez said.
Police claim, however, that a city ordinance would enable them to work more quickly. The state's public nuisance ordinance requires the district attorney's office to get involved, whereas a local ordinance would place the matter in the city's court system.
"Many times we arrest people two to three times," Velez said of repeat offenders. "We certainly don't mind arresting people -- that's our job -- but our real job when you get right down to it is to lower the crime and the criminal impact in the community."
Lumping them together
City prosecutor Michael Curran claims similar ordinances have been passed in the past year in Denver and Aurora, and most recently, on April 6, in Fort Collins.
Curran said courts have upheld such ordinances, however it is unclear whether those cities' entire ordinances or just portions of the laws have been legally challenged.
In addition to questioning the real necessity of the proposed law, the broad coalition of residential and commercial property owners who stand in opposition say they received little advance notification that the proposal was in the works.
Apartment and other property owners are also alarmed because, under the current wording, the ordinance would allow police to secure a temporary restraining order against property owners and managers before they are even notified that an infraction has occurred.
Scheuerman, who is the Apartment Association's legal counsel as well as a member of the agency's board, pointed out that landlords will be in a position of being hauled into court over a situation of which they were unaware without first being allowed a chance to alleviate the problem.
"We were hoping for a more cooperative effort -- we weren't saying you shouldn't be able to deal with gangs and drug dealers," he said. "We want to work [with the cops] as a team, but instead we're feeling like we're being lumped together with the offenders as if we're the bad guys."
Schreiber also protested the police department's refusal to give landlords the ability to resolve situations before being hauled into court.
"We recognize there may be a need for a nuisance ordinance to help the police department remedy repetitive problems, but the way it's written ... we are presumed guilty until proven innocent," she said.
Scheuerman said his organization has been working with the city since last October trying to get them to address some of their concerns and change some of the language.
"But they've been adamant about not wanting to change any of the language," he said.
Scheuerman still hopes to persuade the police to clarify the points of the ordinance. However, opponents are now ready to "put on our war bonnets and go to battle with the city," he said.
The ordinance, which was originally scheduled to go before the City Council for adoption last month, has been postponed twice so far as additional groups have weighed in with their concerns.
A public hearing on the proposed ordinance is scheduled today, Thursday, May 4 from 2 to 4 p.m. at the Falcon Police Station near the Chapel Hills Mall at 7850 Goddard St.
To read the proposed Colorado Springs Public Nuisance Ordinance online, access http://www.colorado-springs.com/govinfo/mnagen00/ca000411.htm, then scroll down to item #9 under New Business, and click on the attached memoranda. Copies of the proposed ordinance can also be reviewed at the City Clerk's office at 30 South Nevada Ave.