§ 37-77 — Motion to vacate or modify temporary restraining order or for return of closed property

Sec. 37-77. - Motion to vacate or modify temporary restraining order or for return of closed property.

(a) General. Any party-defendant and any person holding any legal or equitable interest or right of possession in any property closed or restrained under this article, except a straw man, may file a motion to vacate or modify the temporary restraining order. Proceedings on these motions shall be as provided below. (b) Motion to vacate or modify. Within ten (10) days of the date the defendant is served with the temporary restraining order, the moving party must: (a) file this motion; and (b) set the motion for a hearing to be held as soon as practible; and (c) personally serve, and not by mail, the motion and notice of the hearing on the city attorney's office. Failure to file, set for hearing, serve the motion and notice of hearing, and have the motion heard and determined as provided above shall constitute a waiver of the motion and, except as provided in paragraph (5) of this subsection (b), the temporary restraining order shall remain in effect and shall not be modified until after a trial on the merits or upon the stipulation of the parties. (1) At the hearing, the city shall have the burden of proving that there is probable cause to believe that a public nuisance offense, as listed in section 37-50, occurred on or in the real property or motor vehicle, or probable cause to believe that the real property, motor vehicle, or personal property was used to commit, conduct, promote, facilitate or aid the commission of or flight from any public nuisance. (2) Any motion to modify or vacate a temporary restraining order shall state specifically the factual and legal grounds upon which it is based, and only those grounds may be considered at the hearing. (3) The court shall not grant an adjournment or continuance of the hearing on the motion to modify or vacate the temporary restraining order unless the parties so stipulate. The judicial determination required pursuant to this section shall not be delayed without a finding of fact and conclusion of law by the court as to the necessity for the delay and the declaration of the expedited schedule for the determination. (4) In determining whether there is probable cause, the court shall temper the rules of evidence and admit hearsay evidence unless the court finds that such hearsay evidence is not reasonably reliable and trustworthy. In determining whether there is probable cause, the court shall also consider the affidavit submitted in support of the complaint or motion for temporary restraining order, and those facts need not be repeated at the hearing. In determining whether there is probable cause, the court shall not consider whether any affirmative defenses may exist. (5) Except as otherwise provided in section 37-75(c)(4), the court shall not vacate or modify the temporary restraining order unless it finds that there is no probable cause to believe that a public nuisance occurred. (c) Consolidation of hearing on motion to vacate, modify, or for return of property with trial on merits. Where all parties so stipulate, the court may order the trial on the merits to be advanced and tried with the hearing on these motions. Even where the trial on the merits is not so advanced, any evidence received at the hearing on these motions need not be repeated at trial, but shall be treated as a part of the record for trial.

(Ord. No. 481-98, § 1, 7-13-98; Ord. No. 671-04, § 2, 9-20-04; Ord. No. 307-19, § 10, 4-22-19)