Buckhannon looking at ‘drug house’ ordinance

BUCKHANNON — The city of Buckhannon will be taking a closer look at a proposed draft “drug house” ordinance after concerns were presented to city officials.

City attorney Tom O’Neill provided Buckhannon City Council with a rough draft of an ordinance he described as being largely based on Martinsburg’s law on “drug houses.” The ordinance would allow officials to identify certain properties as a public nuisance, which could lead to orders of abatement.

Properties that would be labeled as a public nuisance would be premises used for prostitution, illegal gambling, illegal possession, storage or delivery of or trafficking in controlled substances or other illegal drug activities.

“We’ve added certain other offenses — manufacturing of a controlled substance, possession with an intent to deliver, delivery of a controlled substance or the dispatch of first responders to respond and treat a drug overdose,” O’Neill added.

If two incidents of illegal activities occur on a property within a 24 month period, the property would be considered a public nuisance.

“And certain city officials, particularly the chief of police, the zoning enforcement officer, the city engineer or any other authorized representative of the city can bring in action in the municipal court to require abatement of the public nuisance,” O’Neill said. “Part of that is issuing an Order of Abatement. That order is required to require the owner or occupant of the property — the person under the control of the property — to take measures that are reasonably calculated to prevent the occurrence of the illegal activity.”

O’Neill added the order of abatement may authorize the issuing of search warrants.

“If delivery of a controlled substance occurs on a piece of property, the police already have the authority to seek the issuance of a search warrant,” he said. “This just expands that authority to seek a search warrant to the city engineer and the zoning enforcement officer.”

O’Neill said the proposed ordinance does not provide for any kind of forfeiture on property.

“Only orders of abatement that are reasonably calculated to prevent recurrence of the illegal activity and to bring the property back into standards that will not put our first responders at risks (and) not diminish the property value of neighboring properties,” he added.

City Recorder Colin Reger questioned the illegal gambling portion of the drafted ordinance.

“Let’s say (someone) has his buddies over for cards, and they put 20 bucks on the table. And the next thing you know, Chief (Matt) Gregory is busting in the house looking for a deck of cards,” he said. “Because that’s the required abatement. I mean, is that what we’re talking about here?”

O’Neill responded, “If the game is raided twice within a 24-month period, Chief Gregory could issue an order of abatement reasonably calculated to prevent recurrence, which could include the issuance of a search warrant, and that order of abatement would probably take the form of, ‘Don’t do this again.'”

Reger also asked for clarification on what measures are considered “reasonably calculated.”

“… You could be pretty arbitrary with what’s ‘reasonably,'” Reger said.

The history of common law practices is what typically defines what kind of police activity is reasonable, O’Neill responded.

O’Neill informed council the ordinance is drafted the way it is to give enforcement agencies the “greatest latitude possible.” This is so they can craft an adequate response to illicit activity.

Reger asked if city officials who have the authority to enforce the ordinance are prepared for criticism over enforcing the law in certain situations.

“That (could be), well, so and so is taking it harder on me because he’s got this ability to make an arbitrary determination about what a reasonable measure is because he doesn’t like me,” Reger said.

O’Neill conceded that risks exist in the enforcement of a criminal statue, but said that the language allows the enforcement agency to tailor the remedy appropriately.

“… It is an exercise in trust with respect to the enforcement agent to do that in a proper way … ,” O’Neill said.

Matt Kerner, community member and the executive director of Opportunity House, was present during the Aug. 16 meeting and stated his concerns with the drafted ordinance.

“To be honest, I just see it as kicking people around town, and they’ll just pop up somewhere else and [make] Matt Gregory’s job harder. But if that’s what you want to do, then that’s what we’ll do,” he said. “But the part about the overdoses — I’m wondering, one, if that would conflict with the state’s Good Samaritan laws, and two, the reasons those laws were passed was that the overwhelming majority of people who use opioids use them in groups. They use them with other people.”

Oftentimes people who die from a drug overdose are found alone and abandoned as people don’t want to call first responders when someone is overdosing, Kerner said.

“My thoughts are if that stays in here, somebody’s going to die because of this,” he said. “Somebody’s going to not want to call (first responders).”

Mayor David McCauley said, “The last thing we want to do is dissuade anyone from reaching out to first responders.”

The mayor stressed the ordinance presented at the Aug. 16 meeting was only a draft and will be revised before council votes on it.

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