Jim Kratovil

Jim Kratovil

CHARLES TOWN – The Charles Town City Council has taken the first step toward expanding its public nuisance ordinances to ensure landlords address renters who take part in illegal activities such as selling drugs, gambling or prostitution.

With a 6-1 vote on Aug. 5, the council passed a first reading of ordinance changes modeled after the so-called drug house ordinance adopted by the city of Martinsburg.

Police Chief Chris Kutcher initiated the changes last year to give the city more options to punish negligent or absentee landlords.

“It’s another tool in our tool belt,” he said. “It’s another piece to try to clean up our neighborhoods.”

Councilman Mike Brittingham, chairman of the council’s ordinance review committee, agreed. “It’s a constructive process,” he said. “It’s not the chief of police going in there and saying ‘You’re going to do this, you’re going to do that, you’re going to do this.’”

The ordinance would allow the city’s police chief – or a substitute he or she selects – to ask a municipal judge to impose an “order of abatement” against landlords who failed to address “nuisance” tenants.

A judge could then impose an order directing a landlord to take action against a tenant who has used the property to commit a felony carrying a punishment of a year or more or to commit two or more illegal nuisance offenses within 12 months.

The proposed ordinance gives a municipal judge discretion to require the landlord “to take measures reasonably calculated to prevent the recurrence of illegal activity.” Such actions could include evicting tenants or requiring background checks of future tenants.

A landlord could be fined between $100 and $1,000 for knowingly failing to follow through with a municipal judge’s orders.

Kutcher said Martinsburg’s ordinance has resulted in fines levied against one out of 60 cases addressed.

Councilwoman Jean Petti, who is a landlord, said she supports the ordinance’s goals and provisions. Because landlords can have limited recourse to change a tenant’s behavior, Petti said, giving landlords an order from a judge to take action against a problem tenant could be helpful.

“It is difficult to evict a tenant and very few reasonable landlords want this type of a situation,” she said. “This would give me an additional level of protection and reinforcement.”

Kutcher worked with Martinsburg’s police chief to develop a draft of the ordinance, which was then adjusted by the Charles Town City Council ordinance committee. An outside attorney for the city also reviewed the ordinance.

Councilman Jim Kratovil, a criminal defense attorney, had several concerns about the ordinance including that it would give the city police chief too much authority to take action against a landlord.

He said he knows property owners who “lost their homes” because of how Martinsburg applied its drug house ordinance. A court case is being litigated over legal issues the ordinance has generated, he said.

Kratovil said he was also concerned about the civil legal standard requiring only a “preponderance” of the evidence to find a landlord in violation of the ordinance. He suggested that the city develop concrete, consistent standards for guiding landlords to address troublesome tenants.

But Kutcher and Brittingham pointed out the ordinance would only empower a municipal judge, not the chief of police, to take action.  

“It’s not me making the decision” against a landlord, Kutcher said. “It’s me taking it to a court. I think that’s the safety valve. It’s not me doing it.”

“I think there’s a process,” he added at another point in the discussion, “and it’s no different from me arresting somebody [for an alleged crime] and filling out the paperwork and the complaint and sending it to the court.”

Kratovil also questioned some of the broad language the ordinance uses to describe illegal drugs that might affect a law-abiding landlord or tenant, including someone who sells homeopathic herbs from home.

“I think a lot of people who sell Amway or other things might be affected by this ordinance,” he said.

Kutcher said the definitions of illicit drugs and illegal behaviors were copied from state code.

Brittingham invited Kratovil and other council members to continue to review the ordinance and suggest improvements. He noted changes could still be made.  

In the end, the City Council voted to pass the first reading. Kratovil, who had asked for more time to review the proposed ordinance, was the lone “no” vote.

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