Who will board the windows and doors?

Over on Maple Lane there is a house that no one lives in. Maybe it has been foreclosed? Maybe it is a rental that no one wants to rent? It could be any number of things. But one thing that is certain is that when the people left, they did not secure the house. The front door is open. The windows are uncovered and some have been broken. I have seen kids coming and going doing who knows what inside. A couple of times at night I thought I saw lights like someone was staying in there. Once I thought I even saw someone taking a large bundle of something from the house. Apparently the owners are not going to secure the building, so who will?

One option may be for the city to step in and see to it that the building is secured. Minnesota Statute § 463.251 provides a process by which a city can secure a building that is considered hazardous because it is open to trespass and has not been secured. The statute spells out the process to follow and an ordinance is not required to use this process. (See the Dangerous Properties memo for more information.) However, an ordinances is required if the city wants to be able to secure buildings when it presents an immediate danger to the health and safety of persons in the community (e.g. “emergency securing”).

Oftentimes when a city adopts an ordinance that allows for emergency securing of buildings, the ordinance also duplicates the language in state law. It is helpful to spell out who can determine that an emergency exists and the process that will be followed. Here is what the League’s Sample Ordinance Regarding Securing of Vacant Buildings says:

SECTION 4. EMERGENCY SECURING OF VACANT BUILDINGS

Pursuant to Minn. Stat. § 463.251, subd. 4, when the city building official, police chief, or fire chief determines that an emergency exists with respect to the health or safety of persons in the community and immediate boarding and securing of a building is required, and where immediate danger will exist to children, transients, or others members of the community without the immediate boarding or securing of the building, the building official, police chief, or fire chief may waive all notice requirements herein and immediately board or otherwise secure the building, provided that:

(1) The conditions showing the existence of an emergency are documented in writing by the building official, police chief, fire chief, or their designees.

(2) Notice is mailed immediately by the department invoking this Section to the owner of record of the premises, the taxpayer identified in the property tax records for the parcel, the holder of the mortgage or sheriff’s certificate, and any neighborhood association for the neighborhood in which the building is located that has requested notice.

The model ordinance includes the statutory definitions of “neighborhood association” and “secure,” as well as additional definitions for “unoccupied building,” “unsecured building,” and “vacant building.” These additional definitions are intended to help the city determine when a building is unoccupied, unsecured, or vacant. Having a set definition helps to minimize arbitrary or inconsistent application.

If you already have an ordinance on the books, it is a good idea to review it if you haven’t done so in the last year or so. There were some sizable changes made in 2009 and you want to make sure that your ordinance includes these changes so that it is consistent with state law.

In 2009, Minnesota Statute § 463.251, subd. 2 was amended to include specific information that must be included in the notice that is served on the owner and other specified people. The required written notice must include a statement that:

(1) Informs the owner and the holder of any mortgage or sheriff’s certificate of the requirements that the owner or holder of the certificate has six days to comply with the order or provide the council with a reasonable plan and schedule to comply with the order and that costs may be assessed against the property if the person does not secure the building.

(2) informs the owner and the holder of any mortgage or sheriff's certificate that, within 14 days of the order being served, the person may request a hearing before the governing body challenging the governing body's determination that the property is vacant or unoccupied and hazardous; and

(3) notifies the holder of any sheriff's certificate of the holder's duty under Minnesota Statute § 582.031, subd. 1(b) , to enter the premises to protect it from waste and trespass if the order is not challenged or set aside and there is prima facie evidence of abandonment of the property as described in Minnesota Statute § 582.032, subd. 7.

A couple of other minor changes were made:

· The holder of the sheriff’s certificate of sale has the right to comply with the order or give the council a plan and schedule to comply with the order.

· The right to request a hearing on the order was also added.

· The time line to comply, offer a plan, or request a hearing went from six to fourteen days. In 2010, the legislature went back and changed the time line again, this time from fourteen back to six days.

The League’s sample ordinance includes the law changes from both 2009 and 2010. For more information, please check out the League’s memo “Dangerous Properties.” The subject will also be covered in a session about foreclosed properties in the League's spring Safety and Loss Control Workshops.

Regulating firearms in the city

In light of the recent horrific shooting spree in Arizona, some cities might be wondering how they can tighten up city ordinances on the regulation of firearms. Unfortunately, there is not a whole lot a city can do by ordinance to prevent firearms in public buildings.

State law extensively regulates firearms. (See Chapter 624; see also Chapters 97A and 97B on hunting). This means cities are very limited in how they may regulate firearms. In fact, state law explicitly preempts cities from regulating firearms, ammunition, or their respective component. (Minn. Stat. § 471.633) There are only two exceptions to the preemption. First, a city may regulate the discharge of firearms. Second, the city may adopt regulations identical to state law. If the city does decide to adopt an ordinance that is outside the scope of these two exceptions, the inconsistent provisions are considered void.

In adopting an ordinance that regulates the discharge of firearms, cities may take different approaches. One example of this type of ordinances comes from the Minnesota Basic Code:

Section 130.02 DISCHARGING FIREARMS.

(A) Shooting upon, over or near a cemetery. Except as provided by M.S. § 97A.137, for wildlife management areas that are 40 acres or greater, no person shall, without permission from the proper officials, discharge a firearm upon or over a cemetery or within 100 yards thereof, unless the person is upon his or her own land.

(B) Hunting near a city park. Except as provided by M.S. § 97A.137, for wildlife management areas that are 40 acres or greater, no person shall hunt, shoot, or kill game within 2 mile of a city park unless the City Council has granted permission to kill game not desired within the limits prohibited by this division.

(C) Discharge of firearms prohibited in certain places. No person shall discharge a firearm on a lawn, park, playground, orchard, or other ground appurtenant to a school, church, or an inhabited dwelling, the property of another, or a charitable institution. This section does not prevent or prohibit the owner thereof from discharging firearms upon his or her own land.

(D) Discharging firearms on highways prohibited. No person shall discharge a firearm upon or over a public road or highway.

(E) Exceptions. This section shall not prohibit the firing of a military salute or the firing of weapons by persons of the nation's armed forces acting under military authority, and shall not apply to law enforcement officials in the proper enforcement of the law, or to any person in the proper exercise of the right of self defense, or to any person otherwise lawfully permitted by proper federal, state or local authorities to discharge a firearm in a manner contrary to the provisions of this section.

If the city does adopt an ordinance regulating firearms, the city may prosecute violators of the ordinance. However, the maximum penalty could only be a misdemeanor because a city has no power to provide for ordinance violation penalties greater than a misdemeanor. (Minn. Stat. § 412.231) On the other hand, if a person is prosecuted for a violation of state law (instead of city ordinance), the penalty could potentially be a gross misdemeanor or felony.

Generally, state law prohibits carrying firearms unless there is statutory authority. One such authorization is the state’s “conceal and carry” law that allows people with the proper permit to carry firearms in public places. (Minn. Stat. § 624.714) Cities sometimes want to prevent people from bringing firearms into city buildings even if they have the proper permit. There is no authority for a city to pass an ordinance or take other actions that could prohibit people with proper permits from bringing firearms into city hall. As I read the conceal and carry statute, only private establishments can ban firearms on their premises. A “private establishment” is defined as “a building, structure, or portion thereof that is owned, leased, controlled, or operated by a nongovernmental entity for a nongovernmental purpose.” Since this definition does not include cities or governmental entities, it does not seem to authorize the city to ban firearms at city hall or other public property. (There is a limited exception to this rule is if city hall is attached or part of a court house.)

In addition to the conceal and carry law, there are other provisions that allow a person to have a firearm in a public place. Two examples come to mind. Minn. Stat. § 624.7181 gives a list of situations that are not considered “carrying” and are therefore acceptable. Some examples include carrying a rifle to a firearm repair shop or to a lawful shooting range. Another example is found in Minn. Stat. § 97B.045, which provides limitations (and exceptions to those limitations) for transporting a firearm. In 2009, this law was amended to allow a person under certain situations to transport an unloaded, uncased firearm in a motor vehicle traveling to or from a site where the person intends to hunt (or has hunted) lawfully that day.

Conclusion. Because of state law preemption issues, cities are limited in their ability to regulate firearms by city ordinance. However, cities can rely on state law and, in addition, may be able to take other safety and security measures that may help to minimize concerns over firearms in public buildings.

New Year, New Resources

I wanted to take a minute to wish all of the readers a very happy 2011! I hope that your new year is off to a great start. As we start a new year, I wanted to mention a couple of new items that might be helpful.

The Tobacco Modernization and Compliance Act of 2010 took effect on August 1, 2010. The Act expands the definition of what is regulated as tobacco in this state to include things like e-cigarettes, mints laced with tobacco, etc. (See the July 30 blog entry for more details.) In light of the changes to the tobacco law, the League collaborated with William Mitchell’s Public Health Law Center to create a model tobacco ordinance. The model ordinance covers regulations on the sale, consumption and possession of tobacco and tobacco related products. The ordinance is available on the League’s website by clicking here.

I did a couple of postings last year about animal regulation issues that mentioned the new League memo “Animal Regulation in Cities.” The memo has been completed and is available on the League’s website or by clicking here. (If you would prefer a paper copy, please call the League and we will mail on to you.) The memo covers many aspects of animal regulation, such as rights and responsibilities, as well as many different types of animals, including dogs, cats, and exotic animals. This memo has been one of my pet projects (pun intended) and I am pleased with the final product. I hope that you find it helpful.

Also, the League's Handbook for Minnesota Cities has been completely updated to include all of the 2010 legislative changes, as well as relevant court opinions, rules, etc. You can view the Handbook online here. The Handbook is a great resource for many city related issues.

As we all gear up for the many issues that will surely face us in 2011, please feel free to contact me with questions or subjects you think would make for a good posting.