§ 37-72. Procedure in general.

(a)

Remedies to be cumulative and supplementary. The remedies provided in this article III of chapter 37 are cumulative and supplementary to the criminal penalties provided in article II of chapter 37, the criminal remedies provided by any other criminal ordinance or statute, other civil remedies, and to any administrative proceedings to revoke, suspend, fine, or take other action against any license. The city may pursue the remedies provided in this article III of chapter 37, the criminal penalties provided in section 37-51 or other ordinances or statutes, other civil actions or remedies, administrative proceedings against a license, or any one (1) or more of them, and may do so simultaneously or in succession.

(b)

No delay in proceedings. The civil action provided in this article III of chapter 37 shall not be delayed or held in abeyance pending the outcome of any proceedings in a criminal, civil, or administrative action, or any action filed by any other person, unless all parties to the action under this article III of chapter 37 so stipulate.

(c)

Nature of nuisance abatement actions and limitation of defenses. All actions under this article III of chapter 37 shall be civil and remedial in nature. The civil action shall be in the nature of a special statutory proceeding. All issues of fact and law shall be tried to the court without a jury. No equitable defenses may be set up or maintained in any action under this section. All closure, receivership, and destruction remedies under this article III of chapter 37 shall be in rem. Injunctive remedies under this section may be partly in personam. The burden of proof in all proceedings under this article III of chapter 37, including proof of the underlying criminal activity forming the basis of a public nuisance, shall be by clear and convincing evidence, unless a different burden of proof is specified.

(d)

Concurrent jurisdiction. Pursuant to article XX, section 6, and article VI, section 1, Colorado Constitution, and sections 4.2.1, 4.2.5 and 4.2.6, charter of the City and County of Denver, the county court for the City and County of Denver is hereby granted the jurisdiction, duties and powers of this article III of chapter 37. The jurisdiction of the county court for the city and county of Denver in actions under this article III of chapter 37 shall be concurrent with the jurisdiction of the district court. Civil actions under this article III of chapter 37 may be filed in the district court or the county court for the City and County of Denver.

(e)

Rules governing actions and discovery. Proceedings under this article III of chapter 37 shall be governed by the Colorado Rules of Civil Procedure unless this article III of chapter 37 provides a more specific rule. Discovery shall be governed by the Colorado Rules of County Court Civil Procedure. Where this article III of chapter 37 fails to state a rule of decision, the court shall first look to the Public Nuisance Abatement Act, C.R.S. section 16-13-301 et seq., as amended, and the cases decided thereunder.

(f)

Exclusive filing authority. Actions under this article III of chapter 37 shall be filed only by the office of the city attorney.

(g)

Consolidation of actions. Actions under this article III of chapter 37 may be consolidated with another civil action under this article III of chapter 37 involving the same property. Actions under this article III of chapter 37 shall not be consolidated with any other civil or criminal action except upon the stipulation of all parties. No party may file any counterclaim, cross-claim, third party claim, or set-off of any kind in any action under this article III of chapter 37.

(h)

Filing of notices with clerk and recorder. Actions under this article III of chapter 37 include actions affecting the use, possession, and enjoyment, of real property. Accordingly, the city may file and record with the clerk and recorder, a cease and desist order or notice of lis pendens, or both, against the real property involved to fully inform and protect the interests of any bona fide innocent third party purchaser.

(i)

Commencement of actions. An action under this article III of chapter 37 shall be commenced by the filing of a verified complaint and a motion for temporary restraining order.

(j)

Parties to action. The defendant(s) to the action provided in this article III of chapter 37 and the persons liable for the remedies in this section include the property itself, any person owning or claiming any legal or equitable interest or right of possession in the property, all tenants and occupants at the property, all managers and agents for any person claiming a legal or equitable interest in the property, any person committing, conducting, promoting, facilitating or aiding the commission of or flight from a public nuisance, and any other person whose involvement may be necessary to abate the nuisance, prevent it from recurring, or to carry into effect the court's orders for temporary restraining orders, closures, receiverships, injunctions, liens, and destruction. None of these parties shall be deemed necessary or indispensable parties. Any person holding any legal or equitable interest or right of possession in the property who has not been named as a party-defendant may intervene as a party-defendant, excluding any straw man. No other parties may intervene.

(k)

Service of process in general. The defendant(s) shall be served as in civil actions except as provided otherwise in this article III of chapter 37.

(l)

Service by mail in motor vehicle cases. Service of the summons, complaint, and temporary restraining order upon the owners and lienors of a motor vehicle shall be deemed sufficient if a copy of the same is sent to the person shown as the owner or lienor on the records of the Colorado department of revenue, division of motor vehicles, or any similar department of any sister state, by first class mail, at the address as shown by the records of the Colorado department of revenue, division of motor vehicles, or any similar department of any sister state, as of the date of the public nuisance offense, or at the last known address given by the owner or listed upon any government issued identification document bearing the photograph of the owner or listed upon apparently valid documents verifying the owner's recent purchase of the motor vehicle that are in accordance with the laws of the state, presented to or found by any law enforcement officer or member of the office of the public nuisance abatement coordinator, whether or not the letter is actually received. Service shall be deemed completed seven (7) days after the letter is mailed.

(m)

Service by mail in real property cases. Service of the summons, complaint, and temporary restraining order upon the owner and all persons claiming a legal or equitable interest or right of possession in real property shall be deemed sufficient if a copy of the same is sent to the person shown as the owner or holder of that legal or equitable interest or right of possession on the records of the assessor or clerk and recorder, by first class mail, at the address as shown by the records of the same, or at the last known address given by said person, or the address listed upon any government issued identification document bearing the photograph of said person presented to or found by any law enforcement officer or member of the office of public nuisance abatement coordinator, whether or not the letter is actually received. Service shall be deemed completed seven (7) days after the letter is mailed.

(n)

Service by posting or detention. The summons, complaint and temporary restraining order shall be served upon the real property itself by posting copies of the same in some prominent place on the real property. Motor vehicles and other personal property shall be deemed served by impoundment or detention of the motor vehicle or other personal property.

(o)

Service by publication. Defendants and unknown persons who may claim an interest in the property who cannot be served by mail as provided above and cannot be served after a good faith and diligent effort to do so may be served by publishing a copy of the summons twice in a newspaper of general circulation within the city. The summons shall describe the property at issue and the place where a copy of the complaint and attendant documents can be obtained. A party served by publication shall have thirty (30) days from the date of the last publication to respond.

(p)

Notification before filing civil action.

(1)

At least ten (10) days before filing a civil action under this article involving any closure, or receivership of real property, the public nuisance abatement coordinator shall post a notice at the main entrance to the buildings or at some other prominent place on the real property. The public nuisance abatement coordinator shall also mail a notice to the owner of the real property and to the holder of the last deed of trust recorded on the real property by first class mail. The mailing of the notice shall be deemed sufficient if mailed to the owner and holder of the last recorded deed of trust at the address shown on any ownership and encumbrance report, or recorded documents attached thereto, issued by any title company doing business within the State of Colorado. The posted and mailed notices shall state that the real property has been identified as a public nuisance and that a civil action under this article may be filed.

(2)

The public nuisance abatement coordinator is authorized to enter upon properties for the purpose of posting these notices and to affix the notice in any reasonable manner to buildings and structures.

(3)

The public nuisance abatement coordinator shall not be required to post or mail any notice specified in subsection (p)(1) whenever the coordinator determines, in his or her sole discretion, that any of the following conditions exist:

a.

The public nuisance poses an immediate threat to public health, safety, or welfare;

b.

Notice would jeopardize a pending investigation of criminal or public nuisance activity, confidential informants, or other police activity;

c.

Notice could result in sale, transfer, encumbrance or destruction of the property;

d.

Other emergency circumstances exist; or

e.

The owner and holder of the last recorded deed of trust have been notified in writing within the last one hundred twenty (120) days that the property has been identified as a public nuisance and that a civil action under this article may be filed.

(4)

It shall be unlawful for any person other than the public nuisance abatement coordinator, or their designated agent, to remove any notice posted under the provisions of this subsection.

(5)

The fact that a defendant took steps to abate the public nuisance after receiving the notice specified in subsection (p)(1), or any other notice, shall not constitute a defense to an action under this section.

(Ord. No. 481-98, § 1, 7-13-98; Ord. No. 671-04, § 2, 9-20-04; Ord. No. 307-19, § 5, 4-22-19)